Congress must act to fill court vacancies

Justice is impeded as president's nominations await votes

November 26, 2010|By Carl Tobias

U.S. Circuit Judge Ronald Gilman of the U.S. Court of Appeals for the Sixth Circuit recently retired after 13 years of dedicated service. Judge Gilman's action meant that the bench has 106 vacancies out of the 858 appellate and district court judgeships. These vacancies, which are 12 percent of the positions, undercut the delivery of justice. When the Senate returns from its Thanksgiving recess for a lame duck session, President Barack Obama should promptly nominate, and the Senate must expeditiously confirm, lower court judges so that the bench will be at full strength.

Since Judge Robert Bork's 1987 Supreme Court nomination battle, Democratic and Republican allegations and recriminations, as well as incessant paybacks, have troubled judicial selection, mainly because of divided government. Democrats now control the White House and will continue to hold the Senate in the next Congress, but they should cooperate with Republicans to stop or limit this unproductive dynamic.

The 179 appellate judgeships, 21 of which are open, are essential because the 12 regional circuits are the courts of last resort in their areas for 99 percent of appeals. Particularly critical is the Second Circuit (covering New York, Connecticut and Vermont), in which three of 13 judgeships are empty.

President Barack Obama has solicited advice from Democratic and Republican home-state senators before making nominations. For example, Maryland Democratic U.S. Sens. Barbara Mikulski and Benjamin L. Cardin recommended Maryland U.S. District Court Judge Andre Davis for a Fourth Circuit vacancy created in 2000 when Judge Francis Murnaghan died. On April 2, 2009, the president nominated Judge Davis, and last November the Senate confirmed him to the Fourth Circuit Court of Appeals.

Mr. Obama has tapped 24 consensus circuit nominees who have balanced judicial temperaments; are smart, ethical, diligent and independent; and are diverse in terms of ethnicity, gender and ideology. The president should keep working closely with Sen. Patrick Leahy (Democrat of Vermont), the Judiciary Committee chairman, who schedules hearings and votes, Sen. Harry Reid (Democrat of Nevada), the majority leader, who arranges floor debates and votes, and their Republican counterparts to expedite confirmation. The Senate has confirmed 11 of Mr. Obama's nominees; it must promptly approve the six awaiting floor votes and conclude scrutiny of the remaining seven.

The 679 district court judgeships, 85 of which are vacant, are also critical because district judges hold trials and ascertain the facts, while appellate courts affirm four-fifths of their decisions. The president usually accords greater deference to home-state senators' perspectives because they know attorneys with the appropriate qualifications.

The Maryland senators recommended Magistrate Judges James Bredar and Charles Day and Maryland Special Court of Appeals Judge Ellen Lipton Hollander for three Maryland district court vacancies in December 2009. Mr. Obama nominated Judges Bredar and Hollander on April 21 and Judge Day on July 21. The Judiciary Committee conducted hearings May 13 for Judges Bredar and Hollander, and the next month voted to approve the nominations. But the full Senate has yet to consider them on the floor. Meanwhile, Judge Day has not received a hearing. Thus, three of 10 authorized judgeships remain open, which imposes pressure on the active judges.

Nationwide, Mr. Obama has nominated 71 highly competent district court candidates. The chamber has confirmed 24; it must promptly approve the 17 waiting for floor action and complete processing of the other 30.

The vacancies in 1 in 8 federal appeals and district court judgeships nationally and in 30 percent of the 10 judgeships in the Maryland district erode the promise of prompt, economical and fair resolution of cases. President Obama must swiftly nominate, and senators must quickly confirm, many outstanding judges when the Senate returns Monday from its recess.

Carl Tobias is the Williams Professor at the University of Richmond Law School. His e-mail is ctobias@richmond.edu.

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