Fourth Circuit Judge Andre Davis to Take Senior Status

By Steve Klepper (Twitter: @MDAppeal)

As of this morning, the United States Courts’ website indicates that Judge Andre M. Davis, of the United States Court of Appeals for the Fourth Circuit, will be taking senior status effective February 28, 2014. Although Judge Davis has been sitting on the Fourth Circuit for less than five years, he is eligible for senior status upon turning 65 because he has been an Article III judge since becoming a U.S. District Judge on August 14, 1995. Judges are eligible to assume semi-retired senior status when they turn 65 if they have served 15 years or more as Article III judges.

In the Fourth Circuit’s 2011 Affordable Care Act decision in Liberty University v. Geithner, Judge Davis dissented from the court’s ruling that the Anti-Injunction Act stripped the federal courts of jurisdiction to adjudicate the act’s constitutionality before it goes into effect in 2014.

Judge Davis is the first of President Obama’s Article III nominees to take senior status. Moreover, although Judge Davis is the youngest of the Fourth Circuit’s three Maryland-based judges, he is the first to announce he will take senior status.

While I wish that Judge Davis could have been in active service longer – he was first nominated to the Fourth Circuit in 2000 but was not then confirmed – his selfless decision to assume senior status should be a boon to the Fourth Circuit. For U.S. District Judges, assuming senior status is a much easier decision. A senior district judge has more control over his or her docket while still being the one-and-only judge in his or her courtroom. But a senior circuit judge loses all seniority on three-judge panels and is unable to participate in en banc proceedings unless he or she sat on the original three-judge panel.

The Fourth Circuit could use more senior judges. Unlike other U.S. Courts of Appeals, like the Second Circuit and D.C. Circuit, where numerous senior circuit judges continue to hear cases, the Fourth Circuit for years has had only one of its senior judges (Judge Clyde Hamilton of South Carolina) at its service. Judge William Wilkins served only briefly as a senior judge before leaving for private practice in South Carolina. Judge J. Michael Luttig left to become general counsel for Boeing before even becoming eligible for senior status. And tragedy has struck the Fourth Circuit in recent years, with the untimely death of Judge M. Blane Michael in 2011, and Judge Karen Williams’ 2009 retirement because of early-onset Alzehimer’s Disease. The Fourth Circuit has relied heavily on outside senior judges, including Judge C. Arlen Beam of the Eighth Circuit and Judge Arthur Alarcon of the Ninth Circuit, to complete three-judge panels.

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