Fill The 4th Circuit's Vacancies Now

The U.S. Fourth Circuit Court of Appeals is the final stop for nearly all appeals from the five states served by the court, including Maryland. Although President Barack Obama has instituted measures to facilitate appointments, fully one-third of the 15 positions on the court are currently vacant, a situation that can erode the delivery of justice. The court now provides the smallest percentages of oral arguments and published opinions - critical yardsticks of appellate justice - although it decides appeals most quickly.

A trenchant illustration of these difficulties is the seat that has remained vacant since Francis Murnaghan, the revered Baltimore jurist, died in 2000. Because Judge Murnaghan's protracted opening and the other four vacancies undermine the court's ability to dispense justice, the Senate must promptly confirm U.S. District Judge Andre Davis to the Murnaghan seat, and Mr. Obama should nominate and the Senate swiftly approve judges for the four remaining positions. Indeed, it would be fitting for the Senate to confirm Judge Davis this week, as it marks the ninth anniversary of his first nomination for this seat.

Several reasons explain why the Maryland seat has been empty since Aug. 31, 2000. This timing made it too late in a presidential election year for Senate confirmation (even though President Bill Clinton did nominate Judge Davis, who had served on the U.S. District Court for Maryland since 1995, that October).

President George W. Bush attempted to fill this judgeship in an ineffective way. He considered Peter Keisler, but Paul Sarbanes and Barbara Mikulski, Maryland's Democratic U.S. senators, objected because Mr. Keisler had not practiced law in Maryland. In 2003, Mr. Bush nominated Claude Allen; however, Maryland's senators opposed Mr. Allen because he had practiced law minimally and, again, not in Maryland. His candidacy languished, and Mr. Allen later withdrew.

In 2007, Mr. Bush nominated Rod Rosenstein, Maryland's U.S. attorney, but Sens. Mikulski and Benjamin L. Cardin preferred that he remain the chief federal prosecutor. Similar machinations plagued efforts to fill vacancies in Virginia, North Carolina and South Carolina.