Commentary: Lower federal court vacancies need filling

Special to McClatchy NewspapersFebruary 7, 2011 

Last week, the federal courts marked an important milestone when United States District Court for the District of Columbia Judge Ricardo Urbina assumes senior status after seventeen years of dedicated service. Judge Urbina’s action means that the judiciary has 101 openings out of the 858 appeals and district court judgeships.

These vacancies undermine the delivery of justice.

Now that the 112th Senate has convened, President Barack Obama should promptly nominate, and the Senate must expeditiously confirm, lower court judges, so that the bench will be at full strength.

Since the 1987 fight over Judge Robert Bork’s Supreme Court nomination, Democratic and Republican charges and counter-charges, as well as non-stop paybacks, have plagued judicial appointments. Although Democrats control the White House and Senate, they should work closely with Republicans to halt or ameliorate this counterproductive cycle.

The 679 district judgeships, 84 of which are open, are crucial because district judges conduct federal trials and determine the facts. President Obama has tapped 86 district nominees, who possess even temperament, are very intelligent, ethical, hard-working and independent. This group is also diverse vis-à-vis ethnicity, gender and ideology. He has fully consulted by seeking guidance from Democratic and Republican home-state elected officials prior to actual nominations and should keep doing so.

For two D.C. District Court vacancies, D.C. Delegate Eleanor Holmes Norton (D) supported well-qualified candidates Beryl Howell and Robert Wilkins, whom the President nominated in mid-2010. Obama has cooperated and must continue to cooperate with Senator Patrick Leahy (D-Vt.), the Judiciary Committee chair, who arranges hearings and votes, Senator Harry Reid (D-Nev.), the Majority Leader, who schedules floor debates and votes, and their Republican analogues to facilitate appointment.

The Senate has confirmed 44 Obama nominees, including Howell and Wilkins. Therefore, the chamber must promptly finish processing the 34 prospects, including D.C. District Court nominees James Boasberg and Amy Berman Jackson, whom President Obama renominated Jan. 5 and the eight he has nominated this year, while he must expeditiously select nominees for the other 42 vacancies, including Judge Urbina’s.

The 179 appeals court judgeships, 17 of which are vacant, are critical, as the 12 regional circuits are the courts of last resort in their regions for 99 percent of cases. Crucial is the Tenth Circuit that has openings in two of 12 judgeships. President Obama has selected 25 excellent appellate nominees. The Senate has confirmed 16 of the nominees. So, it must expeditiously complete reviews of the other eight candidates whom President Obama recently renominated and the one he has nominated in 2011, while he must promptly submit nominees for the remaining eight vacancies.

The openings in eleven percent of federal appellate and district court judgeships nationally and in three of 15 D.C. District Court judgeships erode prompt, inexpensive and equitable case disposition. Thus, President Obama must swiftly nominate, and senators must quickly confirm, many outstanding judges.


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

McClatchy Newspapers did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of McClatchy Newspapers or its editors.

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