Commentary: Diaz and Wynn should be confirmed for Fourth Circuit

Special to McClatchy NewspapersDecember 17, 2009 

When President Barack Obama assumed office, the United States Court of Appeals for the Fourth Circuit experienced openings in four of the tribunal's 15 judgeships. Thus, it was crucial that the administration promptly fill these vacancies.

The White House has instituted measures to facilitate appointments; however, three of the seats remain empty and another opened with Chief Judge Karen Williams's unfortunate retirement. A helpful illustration of this situation is the Nov. 4 nominations of North Carolina Superior Court Judge Albert Diaz and North Carolina Court of Appeals Judge James Wynn to the Fourth Circuit. Because the tribunal's four vacancies can limit expeditious, inexpensive and fair appellate disposition, the Senate must promptly confirm both jurists and Virginia Supreme Court Justice Barbara Keenan, another nominee.

Moreover, Obama should swiftly nominate and the Senate must expeditiously approve a nominee for the fourth empty judgeship. Indeed, the upper chamber should confirm Justice Keenan before it recesses, as the court requires all of its judges to deliver justice.

The Fourth Circuit, which is the last stop for 99 percent of appeals from North Carolina, South Carolina, Virginia, West Virginia and Maryland, currently has openings in four of the court's 15 positions. These empty seats can undermine speedy, economical and fair resolution. For example, the tribunal now furnishes the smallest percentages of oral arguments and published opinions, which are instructive measures of appellate justice, but the court decides appeals most quickly.

Several reasons explain why the Fourth Circuit experiences so many vacancies. President George W. Bush ineffectively tried to fill numerous open judgeships. He rarely consulted with senators from states in which the vacancies arose or selected consensus picks. Therefore, at his presidency’s end, four of the tribunal’s positions lacked judges.

President Obama has employed a few concepts to promptly fill all the current vacancies. The White House has expeditiously consulted the home-state senators before official nominations. Many senators have cooperated with the administration and promptly suggested candidates, who are intelligent, ethical, independent and diligent and possess balanced temperament.

More specifically, Obama consulted North Carolina Senators Kay Hagan (D) and Richard Burr (R), and they agreed to support Judges Diaz and Wynn. The President nominated the jurists on November 4. Senator Jeff Sessions (R-Ala), the ranking member, graciously agreed to the unusual practice of holding one hearing for two appellate nominees, which was conducted on December 16. Both North Carolina senators appeared at the hearing and voiced their enthusiastic support. Indeed, Senator Burr strongly praised each nominee and urged the panel to expedite the two nominees' review and referral to the full Senate, so that half of the court’s vacancies could be filled.

Obama carefully tapped Judges Diaz and Wynn as his North Carolina nominees because they had compiled fine records as jurists in that state's courts and in the military justice system. Both judges earned the highest ABA rating of well qualified. Moreover, the two North Carolina senators have praised the nominations. Because the Fourth Circuit has long operated with many openings the Senate must promptly schedule Judge Diaz and Wynn for floor debates and votes. Senator Burr and Senator Jeff Sessions (R-Ala.), the ranking member, ought to urge Senator Mitch McConnell (R-Ky.), the Minority Leader, to cooperate with Senator Harry Reid (D-Nev.), the Majority Leader, in expeditiously scheduling floor consideration for the two North Carolina nominees.

Vacancies in four of the 15 Fourth Circuit judgeships mean that the Senate must approve Justice Keenan this month and Judges Diaz and Wynn soon, while President Obama must swiftly nominate a candidate for the fourth vacancy. Promptly filling the empty seats is critical because the tribunal urgently needs all of its members to deliver appellate justice.


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

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