First order of business: judicial vacancies

Justice is undermined in Maryland and elsewhere by Senate's failure to approve the president's nominees

November 11, 2012|By Carl Tobias

Now that the 112th Senate is returning for its lame duck session after President Barack Obama captured a second term and Democrats retained a Senate majority, this is an ideal moment to analyze the federal judicial vacancy crisis. The bench currently has 68 vacancies in the 679 District Court judgeships — a 10 percent vacancy rate — including one in Maryland. Thus, starting with Tuesday's lame duck session, President Obama must promptly nominate, and the Senate expeditiously confirm, nominees, so that judges can deliver justice.

For the last few decades, Republican and Democratic charges, recriminations and paybacks have plagued judicial appointments, principally because of divided government. Democrats will control the White House and the Senate over the near term, but the party should cooperate with the GOP to the extent possible and limit these corrosive dynamics, because the third branch needs its judges.

Some critics blamed Mr. Obama for recommending an insufficient number of nominees in 2009, but he subsequently quickened the pace. Before making nominations official, the White House has robustly pursued the advice and support of Republican and Democratic senators who represent jurisdictions where vacancies have arisen. Mr. Obama has in most cases tapped noncontroversial individuals who are intelligent, ethical, industrious and independent, possess balanced temperament, and enhance diversity vis-á-vis ethnicity, gender and ideology.

The Senate Judiciary Committee has quickly scheduled hearings and votes, sending nominees to the floor. There, many of them have languished. For instance, on Sept. 22, the Senate approved two nominees even though it could easily have voted on 19 others, most of whom the Judiciary Committee had approved with minimal opposition. The Senate recessed without acting on any of those excellent nominees because the GOP refused to vote on them.

Republicans should cooperate better. The GOP has automatically held over committee ballots for seven days without persuasive reasons. However, the major problem has been the chamber floor. Republicans have infrequently entered time accords for votes. The unanimous consent procedure, which the GOP employed in September, allows one senator to halt floor ballots. Most troubling has been the Republican refusal to vote on uncontroversial, talented nominees — inaction that contravenes Senate traditions. When senators have eventually voted, they overwhelmingly approved many nominees.

The 68 district vacancies are critical. The president has nominated 27 very capable people. One is Paul Grimm, chief magistrate judge of the U.S. District Court for the District of Maryland. Mr. Obama nominated Judge Grimm on Feb. 16. The American Bar Association unanimously rated the nominee as well qualified, its highest ranking. Mr. Grimm had a smooth May 9 hearing. The committee approved him with one no vote on June 6 and sent Mr. Grimm's nomination to the floor, where he has since languished. Mr. Grimm merits quick consideration because the District of Maryland needs all of its judges to help resolve its substantial caseload.

The 68 district court openings undermine prompt, economical and fair disposition of cases. Beginning on Tuesday, when Congress returns for the lame-duck session, Mr. Obama must speedily suggest candidates for all 41 openings lacking nominees. The Senate, in turn, must rapidly consider those nominees, along with the 19 currently on the floor and the eight still in committee. The interests of justice demand it.

Carl Tobias is the Williams Chair in Law at the University of Richmond. His email is ctobias@richmond.edu.

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