KWAME HOLMAN: For the last decade, Judge James Andrew Wynn has donned the judicial robes as a member of the North Carolina Court of Appeals for nine years and as a temporary replacement on the state Supreme Court for one.
SPOKESPERSON: All rise. The honorable justice of the court of appeals from the state of North Carolina.
KWAME HOLMAN: And Judge Wynn had reason to believe he soon would rise to a higher assignment once again. In August, President Clinton nominated Wynn to fill a vacancy on the US Court of Appeals for the Fourth Federal Circuit.
JUDGE JAMES ANDREW WYNN: Of course, I was enormously flattered by the whole aspect of being appointed to the fourth circuit, and I think it's quite an honor.
SEN. JOHN EDWARDS: I'm convinced that if he ever gets a hearing, he will be confirmed by the United States Senate.
KWAME HOLMAN: It was North Carolina's first-term Senator, Democrat John Edwards, who requested Wynn be nominated.
SEN. JOHN EDWARDS: He's an outstanding judge, has been for many years, well respected by all lawyers who appear before him. He'd make, in my opinion, a wonderful addition to the Fourth Circuit Court of Appeals.
KWAME HOLMAN: The Fourth Circuit Court of Appeals sits in Richmond, Virginia. It hears cases as one of the 12 regional federal circuits, the last stop on the judicial trail before the Supreme Court. The Fourth Circuit takes in the states of Virginia, West Virginia, Maryland, North Carolina, and South Carolina. And historically its 15 judges have come from all five states that comprise the circuit. But that changed in September when Judge Sam Ervin III, a North Carolinian whose father chaired the Senate Watergate hearings, died suddenly at age 73. The Fourth Circuit was left with no North Carolina judge as a full-time member, even though it is the largest of the five states in the region.
SEN. JOHN EDWARDS: The only state in the circuit with no judges, the most populous state in the circuit, but we have no representation at all on the Fourth Circuit. And unfortunately, what's happened is one of the Senators has stopped any hearings on confirmation, or any votes on confirmation from occurring in our circuit, with respect to our circuit.
KWAME HOLMAN: Senator Jesse Helms.
SEN. JOHN EDWARDS: That's correct.
KWAME HOLMAN: Senator Jesse Helms is North Carolina's senior Senator. He's a Republican, a staunch critic of President Clinton, and noted for holding up the President's nominations. Most recently, Helms delayed action on the nomination of former Senator Carol Moseley Braun to become ambassador to New Zealand. In the case of Judge James Wynn however, Helms is blocking a nominee from his own home state.
KWAME HOLMAN: Why?
SEN. JOHN EDWARDS: Well, I can't read senator helms' mind. He has... the view that he has voiced is that it is not necessary to fill these positions.
KWAME HOLMAN: And it's not just Judge Wynn's nomination Helms is blocking. Currently there are three vacancies on the Fourth Circuit Court of Appeals, all of which, traditionally, were filled by North Carolinians. One of those vacancies has existed since 1990, the longest- standing vacancy in the federal appeals court system. Helms personally has seen to it those seats remain vacant. In fact, he introduced legislation in the Senate that would eliminate two of those seats altogether.
SEN. JOHN EDWARDS: I would respectfully disagree with him about that. The caseload in the fourth circuit, according to the administrative office of the courts, justifies 20 judges. We only have 15. Three of those 15 are now vacant, which means we only have 12. So we have just over half of the judges that our administrative caseload would justify.
KWAME HOLMAN: The "Raleigh News-Observer," North Carolina's major state capitol newspaper, recently editorialized that Helms is blocking the court nominations to satisfy a grudge, and charged the Senator has been ticked off since 1991 when Senate Democrats refused to confirm his choice for the fourth circuit, District Judge Terrence Boyle, a former Helms aide. In the opinion of another statewide paper, the "Charlotte Observer," Helms' actions deprive an important circuit court of appeals of the contributions a North Carolina judge could make to the interpretation of the law. Senator Helms declined our request to be interviewed on this issue, but he is not alone in his views on limiting the membership on the Fourth Circuit court.
HON. J. HARVIE WILKINSON III, Chief Justice, U.S. Court of Appeals-4th Circuit: If you have a court of 12 people, you can reach a decision much more quickly and efficiently, than if you have a court of 20 to 23 people.
KWAME HOLMAN: Judge James Harvie Wilkinson III speaks from experience. He was appointed to the Fourth Circuit Court of Appeals by President Reagan in 1984, and now serves as its chief judge.
HON. J. HARVIE WILKINSON III: And on our court, before an opinion is released, you have... every judge acknowledges that opinion, or signs off on it. And if we continue to expand the number of judges on the fourth circuit, it's going to make that process more cumbersome.
KWAME HOLMAN: The Fourth Circuit has earned a reputation for rendering decisions faster than any other court in the appellate system, and last year it handled nearly 5,000 cases. When we spoke with Judge Wilkinson, he didn't hesitate to express his opinion on the size of the court system, and the speed at which it work it works.
HON. J. HARVIE WILKINSON III: I think it's entirely a legitimate thing for a judge to communicate on.
KWAME HOLMAN: Chief Judge Wilkinson also has appeared before the Senate Judiciary Committee to express his concerns about the expanding federal judiciary, and the consequences of it.
HON. J. HARVIE WILKINSON: The federal judiciary has grown from 250, or 270 judges, in 1950 to over 860 judges today. And the question I have is, where will this stop? What concerns me is that if we keep adding to the number of federal judges, those judges are going to have to find things to do, extra things to do. And one of... some of things they are going to be doing are interfering in state and local decisions involving school curriculum, in state and local decisions involving school discipline, in state and local law enforcement activities to a significant extent, in state prison hospital governance, in local zoning board decisions, and I don't think that that is a healthy development to have more and more federal judges involving themselves and injecting themselves into more and more state and local problems.
KWAME HOLMAN: If the Fourth Circuit's current vacancies aren't filled, it would ensure no North Carolinians would serve full- time on the court for the foreseeable future. It also would mean no African- American would serve on the court. But that would not be a new phenomenon. Throughout the nearly 100-year history of the Fourth Circuit Court of Appeals, not one of its judges has been black.
REP. JAMES CLYBURN: You know I have grandchildren there, and I would hate for my grandchildren to grow up thinking that there were places in a democracy where he or she need not apply.
KWAME HOLMAN: James Clyburn is a four-term Democratic Congressman from South Carolina, one of the five states within the Fourth Circuit. The combined African-American population of those five states is 22%, higher than any other regional circuit.
REP. JAMES CLYBURN: North Carolina, South Carolina, Virginia, West Virginia, Maryland. That's where black people live in this country. Why don't we have one there -- because one man has decided that he's not going to allow it to happen. Now, he has used other things. He even said, "We don't need any more judges. We've got enough on the fourth circuit." Well, if that's true, then why one year ago did Mr. Traxler from my home state get approved by the same gentlemen? So his actions are very clear.
KWAME HOLMAN: Senator John Edwards gives Helms the benefit of the doubt.
SEN. JOHN EDWARDS: Senator Helms has never said anything to me to indicate that race plays any role in the process, and I take him at his word.
REP. JAMES CLYBURN: Now, he may not say he has given a racial litmus test to all of this, but if your action perpetuates a current effect of this past discrimination, every analogy I've seen, legal analogy, says that that, in and of itself, is racist.
KWAME HOLMAN: The racial makeup of the court was not an issue Judge Wilkinson wished to talk about.
HON. J. HARVIE WILKINSON III: It would be -- not be appropriate for me as a judge to jump into a question which is a very difficult one, a very volatile one, and a political one, and a member between... a matter of debate between the executive and legislative branches. My perspective is purely one of judicial administration, and I want to keep it there.
KWAME HOLMAN: However the all-white Fourth Circuit Court is perceived by many observers to be the most conservative of all the appeals courts. A "Raleigh News-Observer" editorial says legal questions before the Fourth Circuit are steadily pushed to the right. The "New York Times" called it the boldest conservative court in the nation. Mark Johnson covers the court for Media General Newspapers, which includes the "Richmond Times-Dispatch."
MARK JOHNSON: It's clearly the most conservative court in the country. The hallmark of the Rehnquist Supreme Court has been to limit the role of the judiciary, to let the states and the legislatures handle the big issues of the day. The Fourth Circuit, more than any other court, has not only embraced that philosophy, but they have applied it to some of the hottest issues of the day.
KWAME HOLMAN: For instance, among its recent decisions, the Fourth Circuit has struck down regulations of the Clean Water Act; determined the Violence Against Women Act to be unconstitutional; weakened the Miranda ruling, which requires that criminal suspects be informed of their rights; and blocked an attempt by the Food and Drug Administration to regulate nicotine.
MARK JOHNSON: You have a clear, conservative majority on the Fourth Circuit. Now, with some of the vacancies, that majority is even stronger than it was before.
KWAME HOLMAN: If it could be shown that there was a particular "conservative" or "liberal" bent to the court, would that be a reason to allow new members to come on to it who might have a different view?
HON. J. HARVIE WILKINSON III: I think... If to be... To take that approach to it, politicizes the courts. If we're going to say well, this circuit is of this supposed philosophical bent, therefore, we should add new judges to this, but this circuit is of a different philosophical bent, and therefore we don't need to add new judges to that, then we are going to have decisions with respect to the rule of law in our country, and decisions with respect to the federal courts in our country, made on a highly politicized basis.
KWAME HOLMAN: Tom Jipping, vice president of the conservative Free Congress Foundation, takes that argument one step further. He charges there is an effort by some to liberalize the federal courts, using African-American candidates.
TOM JIPPING, Free Congress Foundation: When people talk about wanting more black judges, they're afraid... they really can't-- or they don't feel they can-- justify talking about more activist liberal judges, so they'll just talk about race, because that's somehow safer, that's more politically acceptable. But that's not really what they're after.
KWAME HOLMAN: If these African-American judges are seen as having "liberal judicial philosophies," how can you know that it's not those so-called "liberal judicial philosophies" that are the issue, and not race?
REP. JAMES CLYBURN: Well, that's the debatable part of this, and that's why you have hearings. If that's what you feel, then grant the hearings. Let's have people there, and answering the questions. Let's look at the record, and do it in the sunshine, so that the whole world can see.
KWAME HOLMAN: But unless Senator Jesse Helms changes his mind, Judge James Andrew Wynn never will get his confirmation hearing, and be left with only the honor of having been nominated.