Commentary: Appointing appellate judges in the 112th Senate

Special to McClatchy NewspapersAugust 2, 2011 

When President Barack Obama secured election, the United States Courts of Appeals experienced openings in fourteen of the 179 judgeships. Accordingly, it was essential that the White House expeditiously fill those vacancies.

The Obama administration has instituted many measures to facilitate appointments.However, a number of the positions are still empty and more have opened as judges have retired or assumed senior status. The total number of vacancies is now nineteen.

An instructive example is the Nov. 2009 Fourth Circuit nomination of North Carolina Superior Court Judge Albert Diaz. Because the open appellate court seats erode the judiciary’s swift, inexpensive and fair resolution of appeals and Judge Diaz had waited thirteen months for a floor vote, the Senate ultimately approved him last December.

Now that the 112th Senate has concluded its first half-year by confirming only three nominees and Obama has tapped nominees for ten of the appeals court vacancies, Obama must promptly nominate excellent candidates for the remaining vacancies while the upper chamber must swiftly confirm all of the appellate nominees.

Several reasons explain the numerous open judgeships. During his administration, President George W. Bush ineffectively attempted to fill Fourth Circuit vacancies. He infrequently consulted with senators from states with openings or chose consensus picks. One Maryland and one North Carolina Fourth Circuit seat lacked judges throughout the entire Bush Administration, while four openings remained at his presidency’s end.

Obama has invoked a few practices to expeditiously fill all the current vacancies. He swiftly consulted home-state elected officers prior to official nominations. Most officials have cooperated with him and promptly suggested prospects who are intelligent, ethical, independent and industrious and have even temperament. The White House expressly consulted North Carolina Democratic Senator Kay Hagan and Republican Senator Richard Burr, who agreed to support Judge Diaz.

The chief executive nominated Diaz in Nov. 2009, while the Judiciary Committee granted him a December hearing at which the North Carolina senators testified to express their support. The panel unanimously approved Diaz in January 2010. The nominee languished on the Senate floor for more than ten months. Indeed, he waited longer than dozens of other lower court nominees whom the panel had approved, many of whom had no opposition.

Senator Patrick Leahy (D-Vt.), the Judiciary Committee Chair, worked to secure Judge Diaz’s Senate floor debate and vote. Senator Leahy cooperated with Senator Hagan in asking that Senator Mitch McConnell (R-Ky.), the Minority Leader, work with Senator Harry Reid (D-Nev.), the Majority Leader, to promptly schedule the nominee’s debate and vote. In spring and summer 2010, Senator Hagan went to the Senate floor where she praised Judge Diaz’s abilities, emphasized his prolonged wait and urged a prompt vote on the nominee. Senator McConnell refused to agree on a vote because Democrats had blocked a vote for one of President Bush’s nominees from North Carolina. In late July, President Obama asked the Minority Leader to cooperate in filling the “vacancies that continue to plague the judiciary.”

Obama meticulously chose Judge Diaz as a nominee for the Fourth Circuit, which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia because he had compiled an excellent record as Superior and Business Court Judge and as a jurist in the military justice system. The nominee earned the highest ABA ranking of well qualified. Notwithstanding, Diaz’s outstanding background, the Senate did not conduct his floor debate until the eve of the chamber’s December adjournment. The chamber finally confirmed Diaz without substantive debate or opposition.

Vacancies in more than ten percent of the federal appeals court judgeships demonstrate that President Obama must swiftly propose nominees for all nineteen openings and the Senate must promptly confirm them. Judge Diaz’s experience shows that there is no reason for delay. Quickly filling the open seats is critical because the courts need all of their judges to deliver justice.


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

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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