Commentary: Breaking the lower federal court vacancy logjam

McClatchy NewspapersJune 21, 2010 

RICHMOND, Va. — On June 7, the U.S. Senate confirmed Judges Audrey Goldstein Fleissig, Lucy Haeran Koh and Jane Magnus-Stinson to be U.S. district judges for the Eastern District of Missouri, the Northern District of California and the Southern District of Indiana, respectively. The Senate unanimously confirmed all three nominees four and half months after President Barack Obama nominated them.

It wasn't surprising that the Senate confirmed three highly competent nominees. What's unusual is that this was the first time that the Senate had confirmed more than one Obama judicial nominee at a time.

Because 100 of the 858 appellate and district judgeships remain vacant, eroding the prompt, inexpensive and fair resolution of cases, the Senate should swiftly confirm Obama's 26 remaining lower court nominees by reestablishing its longstanding tradition of confirming well-qualified, non-controversial nominees soon after the Judiciary Committee approves them.

President Barack Obama has taken a number of steps to make the selection of lower court judges more efficient. Perhaps most important, he's consulted with home-state senators before making nominations.

For example, Obama worked closely with California Democratic Sens. Barbara Boxer and Dianne Feinstein, who relied on a bipartisan merit selection panel that analyzed and interviewed candidates and recommended Santa Clara County Superior Court Judge Koh, whom Boxer and Feinstein suggested to Obama and he nominated.

The president consulted Sens. Evan Bayh (D-Ind.) and Claire McCaskill (D-Mo.), who recommended Judges Magnus-Stinson and Fleissig, both of whom were serving as Magistrate Judges in the federal districts to which they were appointed.

Obama nominated Fleissig, Koh and Magnus-Stinson on January 20, the opening day of the 111th Senate's second session. All three nominees are highly qualified. Koh has been a state court judge in a populous California county, while Fleissig and Magnus-Stinson have been Magistrate Judges in the federal system.

Each of them is intelligent, ethical, independent and diligent and has a balanced judicial temperament. Moreover, the appointees add ethnic and gender diversity to the federal bench. All three are women, and Judge Koh will be both the first Korean American female federal judge in U.S. history and the first Asian American to serve on the Northern District of California.

The Judiciary Committee Chair, Sen. Patrick Leahy (D-Vt.), expedited the three nominees' consideration. On February 11, all three received hearings, and the committee approved them on March 4. Despite the nominees' qualifications, Sen. Mitch McConnell (R-Ky.), the Minority Leader, agreed to a floor vote only as the Senate departed for its Memorial Day Recess.

However, the three judges aren't the only nominees who've languished on the Senate Calendar. Indeed, there's a backlog of 26 judicial nominees awaiting floor action, 16 of whom the Judiciary Committee reported without a single negative vote. A number have waited several months, and one has been stalled for more than six months.

With 100 vacancies undermining swift, economical and fair case disposition, Republicans should stop slowing floor votes by placing anonymous holds on nominees, and McConnell should agree to prompt floor votes.

For their part, Democrats should schedule thorough debates for nominees whom Republicans deem controversial. Most important, the Senate should restore the tradition of confirming multiple qualified, uncontroversial nominees.


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

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