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Adios Judge Andre Davis; 2009 Obama Appointee Takes Senior Status

By William Peacock, Esq. on March 05, 2014 | Last updated on March 21, 2019

As predicted late last year, Judge Andre Davis, after only a few years on the Fourth Circuit, took senior status as of February 28, 2014. He was eligible for the semi-retired status due to his prior service on the district court bench for nearly two decades.

His move to senior status opens up an extra seat on the bench, which due to tradition, must be filled with a Maryland appointee. Meanwhile, as a senior judge, he'll still hear cases. Think of this arrangement in baseball terms -- he's a pinch hitter when the docket is full. (For more on the Rule of 80 and what senior status really means, see our post from last year.)

We'll Always Have Norman Kerr

Though he only spent a few years on the Fourth Circuit, Judge Davis authored a truly memorable dissent in United States v. Norman Kerr. Calling the majority out for a "Alice-in-Wonderland analysis," he argued the majority violated principles of comity and federalism by ignoring the sentencing decision of a state court, as well as Fourth Circuit and Supreme Court precedent. He also lamented the consequences of the court's holding:

"And it goes to such lengths all to affirm a twenty-two-year sentence imposed on a fifty-one-year old mentally ill veteran who had previously never served more than ten months in prison, tagging him with the moniker "armed career criminal." We can do much better than this."

It's one of those dissents that, whether or not you agreed with him (he did make a damn good argument), you feel shame for even reading the majority.

A Confirmation Nine Years Delayed

Judge Davis was only on the court for a few years, but that's in large part because of his delay in confirmation. He was originally nominated in 2000 by President Bill Clinton and would've been the first African-American judge to sit on the Fourth Circuit, reports The New York Times. 

His nomination was blocked, however, and the seat remained vacant throughout the presidency of George W. Bush. President Barack Obama re-nominated Davis in 2009.

NAACP Urges African-American Replacement

In a letter to President Obama, the NAACP and other parties urged the president to fill the vacancy with another African-American. The letter recounts the difficulty surrounding his confirmation, Maryland's demographics (thirty percent African-American), and the lack of any African-American nominees pending in the Senate.

The letter also encourages the president to look at female candidates, as it notes that only eight African American women have ever served on our nation's  appellate courts, with three of the seven active judges from this group nearing senior status.

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