Commentary: Elevating Judge Beverly Martin to the Eleventh Circuit

Special to McClatchy NewspapersDecember 11, 2009 

When President Barack Obama took the oath of office in January, the United States Courts of Appeals experienced vacancies in fourteen of their 179 judgeships. Therefore, it was critical that the new administration expeditiously fill these openings.

The White House has adopted practices to facilitate appointments; however, many of the seats remain unoccupied and a number more have become empty, as judges have retired or assumed senior status, so the total is currently 19.

One instructive example of these problems is the June 19 nomination of Georgia U.S. District Judge Beverly Martin to the Eleventh Circuit. Because the regional circuit vacancies can undermine the judiciary's prompt, economical and fair disposition of appeals, the Senate must swiftly approve Judge Martin. Additionally, the President should expeditiously nominate and the Senate must promptly confirm nominees for the other unfilled judgeships.

It would be fitting for the Senate to approve Judge Martin this month because it marks the 6-month anniversary of her nomination.

The President has applied several techniques to expeditiously fill all the present openings. He has promptly consulted the home-state senators prior to actual nominations. Many senators have cooperated with the administration and swiftly proposed candidates, who are very smart, ethical, independent, hard-working and have even temperament.

More particularly, Obama consulted Georgia Republican Senators Saxbe Chambliss and Johnny Isakson, and they strongly supported Judge Martin. The chief executive nominated the jurist on June 19, while she received a July 29 hearing at which both Georgia senators appeared and expressed their enthusiastic support. The Judiciary Committee approved her on a Sept. 10 voice vote.

However, at last week's Senate Judiciary Committee Executive Business Meeting, Senator Patrick Leahy (D), the chair, and Senator Jeff Sessions (R-Ala.), the ranking member, engaged in a colloquy about Judge Martin. Senator Leahy asked why the jurist had not yet received a floor vote and stated that he had met with the Senate leadership on the issue several weeks ago but could secure no agreement. Sessions, who has observed in committee and on the Senate floor that Martin is a fine nominee whom he favors, reiterated his strong support and urged Leahy to "try again."

Senator Leahy should promptly follow up on that invitation and Senator Sessions should ask Senator Mitch McConnell (R-Ky.), the Minority Leader, to cooperate with Senator Harry Reid (D-Nev.), the Majority Leader, to swiftly arrange Judge Martin's floor debate and vote.

The White House carefully selected Judge Martin as its first nominee to the Eleventh Circuit, which includes Alabama, Florida and Georgia because she had compiled a distinguished record as a U.S. District Judge in Georgia over nearly a decade. The jurist earned the highest ABA rating of well qualified. Moreover, the two Georgia Republican senators have praised the nomination. Notwithstanding the jurist's excellent service, she has yet to be scheduled for a floor debate and vote.

Openings in eleven percent of the federal appellate judgeships mean that President Obama must promptly nominate candidates for all the vacancies and the Senate must expeditiously confirm them and approve Judge Martin this month. Swiftly filling the empty positions is crucial because the appeals courts urgently need all of their members to deliver appellate justice.


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

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