003

By DEBORAH SONTAG

The 19th-century courthouse that houses the United
States

Court of Appeals for the Fourth Circuit sits across
from a

CVS and a Dress Barn on a desultory stretch of Main
Street

in Richmond, Va. The entrance -- peeling ''Pull''
sign,

metal detector, dim lobby -- is not awe-inspiring.
But

upstairs in the courtrooms, beneath the pendulous

chandeliers and the oil portraits of former jurists,
a hush

prevails. Whether or not the judges are on the bench,

people whisper. It is as if they tacitly accept that
the

atmosphere should continue to be rarefied even as
the

judicial process becomes increasingly polluted by
politics.

This 148-year-old building, once the site of the

Confederate Treasury, is where you go if you are
appealing

the decisions of federal judges or juries in Virginia,
West

Virginia, Maryland, North Carolina or South Carolina.
It's

the last stop before the Supreme Court, which, given
how

few cases the highest court actually hears, essentially

makes it the court of last resort for those seeking
justice

in this region. Let the plaintiff beware, though;
the

Fourth Circuit is considered the shrewdest, most

aggressively conservative federal appeals court in
the

nation.

On the last Tuesday in February, Lisa Ocheltree of

Lexington, S.C., settled warily onto a hardwood bench
in a

courtroom carpeted in billiard-table green. Several
years

ago, Ocheltree won a substantial jury verdict in
a

sexual-harassment suit against her former employer.
The

jury found that vulgar language, crude sexual commentary

and sexual acting-out created an extremely hostile
working

environment for Ocheltree as the sole woman in a

costume-production workshop. But a three-judge panel
of the

Fourth Circuit overturned that verdict late last
year.

''Were they telling me that I should have just sucked
it

up?'' Ocheltree asked. She petitioned the full court
to

reconsider the panel's 2-to-1 decision, and the judges

agreed to take her case en banc, which they hardly
ever do.

And so all 12 judges were about to file in and take
the

bench, affording a rare glimpse at the dynamic of
the

entire court. Ocheltree's lawyer was nervous: a three-judge

panel of the Fourth Circuit provides a grilling,
but this

would be a full-court press. Ocheltree, however,
was

determined not to be intimidated. ''Just because
I'm a

blue-collar worker doesn't mean I'm gonna let the
black

robes scare me,'' she said. ''It may be the South,
but it's

the 21st century.''

Geographically, the Fourth Circuit, one of 13 federal

courts of appeals, is not the most southern. But
it is

singularly genteel: its judges descend from the bench
to

shake lawyers' hands after oral arguments. And as
recently

as 1999, Chief Justice William H. Rehnquist led the
Fourth

Circuit's annual judicial conference in a traditional

rousing sing-along that included ''Dixie.'' This
always

offended civil rights lawyers and the few African-American

lawyers in attendance. But it never surprised them.

It was not until the year 2001 that the Fourth Circuit,

which has the largest African-American population
of any

appellate jurisdiction, became the final federal
appeals

court to be racially or ethnically integrated. Many

consider the court to be a legacy of Strom Thurmond
and

Jesse Helms because the former senators from the
Carolinas

played a key role in shaping it through patronage

appointments and obstructionism. Indeed, President
Bush's

most recent appointment to the Fourth Circuit, Dennis
W.

Shedd, is a former chief of staff to Thurmond; his
pending

nominee, Terrence Boyle, is a former Helms aide

unsuccessfully nominated by Bush's father more than
10

years ago.

Although President Bush may or may not get the chance
to

name a new Supreme Court justice this year, he is
busy

trying to fill 25 federal appeals court vacancies,

including 3 on the Fourth Circuit, with the backing
of a

newly Republican Senate. He already has 16 nominees
waiting

for confirmation. And despite the occasional Democratic

filibuster, he appears poised to transform the federal

judiciary -- which includes 179 appeals judges at
full

strength -- back into an overwhelmingly conservative
bench.

In 12 years between them, Ronald Reagan and George
H.W.

Bush established a Republican majority on every appeals

court. Clinton, facing stiff resistance from an opposition

Senate for six of his eight years, pushed that back

somewhat so that Bush inherited a Republican majority
on 8

of the 13 appellate courts, with 3 more poised to
swing

Republican through his appointments. And those

appointments, because they are for life, could reverberate

for generations. Judge H. Emory Widener Jr. of the
Fourth

Circuit, who is 79, was named by Richard Nixon 31
years

ago.

As Bush makes his selections, his staunch conservative

supporters tout the Fourth Circuit as a model to
emulate,

and liberals view it anxiously as a harbinger of
doom.

That's because the Fourth Circuit, which has eight

Republican and four Democratic appointees, is not
only

conservative but also bold and muscular in its

conservatism. It is confident enough to strike down
acts of

Congress when it finds them stretching the limits
of the

federal government's power and hardheaded enough
to rule

against nearly every death-row defendant who comes
before

it.

To critics, the Fourth Circuit lacks compassion for
the

individual. To admirers, the Fourth Circuit is a
welcome

corrective after years of soft, liberally activist
benches,

a brilliant court with a healthy respect for the
concerns

of prosecutors, of business owners, of state officials
--

and of the Bush administration, which received deference

from the court to treat a United States citizen captured
in

Afghanistan as an ''enemy combatant'' who could be
detained

without charges even on American soil.

Helms once told a North Carolina newspaper that the
furor

in Washington over judicial nominations was out of
whack

with the sentiments of the public: ''You go out on
the

street of Raleigh, N.C., and ask 100 people, 'Do
you give a

damn who is on the Fourth Circuit Court of Appeals?'

They'll say, 'What's that?'''

He had a point. Few pay much attention to federal
courts

below the Supreme Court level. But they should. The

appellate courts, created in the late 19th century
to

relieve overcrowding of the Supreme Court's docket,
decide

about 28,000 cases a year compared with the highest
court's

75 or so. Practically speaking, they have the final
say in

most matters of law; their reach is broader, if not
deeper,

than the Supreme Court's itself.

Judges on the Fourth Circuit say that they just follow
the

Supreme Court's lead. And it is true that the Fourth