Commentary: Second Circuit Appeals Court openings need to be filled

Special to McClatchy NewspapersOctober 20, 2009 

The country's attention was recently focused on the Senate confirmation vote for U.S. Second Circuit Court of Appeals Judge Sonia Sotomayor, President Barack Obama's initial Supreme Court nominee and judicial appointment. This emphasis was proper because the tribunal is the highest court in the nation and decides appeals involving fundamental constitutional rights.

Nonetheless, the same day that Justice Sotomayor received appointment, Second Circuit Judge Robert Sack assumed senior status, a type of semi-retirement, thereby joining his colleague, Guido Calabresi, who had previously taken senior status. Moreover, on Oct. 10, Judge Barrington Parker also assumed senior status. These developments mean that the Second Circuit will have vacancies in four of its thirteen authorized judgeships.

Operating without nearly 25 percent of the tribunal's judicial complement will frustrate expeditious, inexpensive and equitable disposition of appeals. Thus, President Obama should promptly nominate, and the Senate must swiftly confirm, outstanding judges to all four openings.

The numerous vacancies can erode the delivery of justice by the Second Circuit, which is the court of last resort for all but one percent of appeals taken from Connecticut, New York and Vermont. The tribunal resolves more critical business disputes than any of the 12 regional circuits and decides very controversial issues relating to questions, such as free speech, property rights and terrorism.

Among the appellate courts, the Second Circuit needs more time to conclude appeals than all except one, which is a useful yardstick of appellate justice. The August loss of two active judges and the October loss of a third will exacerbate the circumstances, especially by additionally slowing the resolution of cases that are essential to the country's economy.

There are several reasons why the tribunal lacks almost one quarter of its members. Judge Chester Straub took senior status in July 2008, and President George W. Bush nominated Southern District of New York Judge Loretta Preska on Sept. 9 after minimally consulting New York's Democratic Senators Charles Schumer and Hillary Clinton. September was too late in a presidential election year for an appointment, and the 110th Senate adjourned without affording the nominee a hearing.

Moreover, President Obama has nominated no one for the Calabresi or Sack opening, although both jurists announced that they intended to take senior status last March. In fairness, Judge Calabresi did not actually assume senior status until late July, while Judge Sack only took senior status and Justice Sotomayor was confirmed in August.

President Obama has implemented several measures that should foster prompt appointments. First, he practiced bipartisanship to halt the detrimental cycle of accusations, countercharges and non-stop paybacks. Moreover, the White House has promoted consultation by seeking advice on designees from Democratic and GOP Senate members, especially home state senators, before official nominations. Obama has also submitted consensus nominees, who have even temperaments and are very smart, ethical, diligent and independent. The Executive has worked closely with Senator Patrick Leahy (D-Vt.), the Judiciary Committee chair, who schedules hearings and votes, and Senator Harry Reid (D-Nev.), the Majority Leader, who arranges floor debates and votes, and their GOP counterparts to facilitate confirmations.

Emblematic is the President’s nomination of U.S. District Judge Gerard Lynch, who served with distinction on the U.S. District Court for the Southern District of New York since 2000. New York Democratic Senators Schumer and Kirsten Gillibrand expeditiously suggested the superb trial judge to Obama, who nominated Lynch on April 2. By mid-May, the panel conducted Lynch's confirmation hearing, and on June 11, the committee approved Lynch. In mid-September, the Senate confirmed Lynch on a 94-3 vote.

Senator Schumer's Sept. 9 announcement that he had recommended District Judge Denny Chin to the White House and the jurist's Oct. 6 nomination are precisely the correct approaches. The New York and Connecticut senators must continue suggesting excellent candidates for the three Second Circuit openings which remain. Obama must swiftly consider their proposals and nominate outstanding prospects. The Judiciary Committee should promptly afford hearings and votes, while the Majority Leader ought to expeditiously schedule floor debates and votes.

Judge Sotomayor's Supreme Court elevation, the assumption of senior status by Judges Calabresi, Parker and Sack and Judge Lynch's recent Senate confirmation mean there are four openings in the Second Circuit's thirteen judgeships. President Obama should cooperate with the Senate to quickly fill the vacancies with superior judges, so that the tribunal can deliver appellate justice.

ABOUT THE WRITER

Carl Tobias is the Williams Professor at the University of Richmond School of Law

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