Commentary: Time to fill 92 lower court openings

Special to McClatchy NewspapersSeptember 21, 2011 

Now that the Senate has returned from its summer break, this is an ideal moment to analyze the state of lower federal court judicial selection.

The federal judiciary currently experiences 92 openings in the 858 appellate and district court judgeships. The vacancies first reached 90 two years ago and have since remained above or near that number. These unfilled seats, which constitute more than ten percent of the positions, erode swift, economical and equitable case disposition. Accordingly, President Barack Obama should expeditiously nominate, and the Senate must promptly confirm, lower court judges, so that the bench will have a full contingent of members.

For nearly a quarter century, Republican and Democratic charges and recriminations as well as incessant paybacks have troubled judicial appointments mainly because of divided government. Democrats presently control the Executive and the Senate, but they should continue attempting to cooperate with Republicans and stop or temper these unproductive dynamics.

Some observers criticized Obama for nominating too few candidates in 2009, but the White House has quickened the pace, tendering more nominees last year than throughout 2009 and maintaining that pace this year. The administration has thoroughly consulted by soliciting the advice of Republican and Democratic senators from states in which openings arose before official nominations. Obama has tapped consensus nominees, of balanced judicial temperament, who are very smart, ethical, hardworking and independent, as well as diverse in terms of ethnicity, gender and ideology.

Senator Patrick Leahy (D-Vt.), who chairs the Senate Judiciary Committee, has expeditiously conducted hearings and votes, sending nominees to the floor where most have languished for months awaiting votes. For example, on the day that the Senate recessed, the chamber approved a mere four district judges, although it could easily have approved another 20 nominees whom the Judiciary Committee had unanimously reported.

Republicans should attempt to cooperate more.

The minority has invariably held over nominee votes for a week absent persuasive reasons in the Judiciary Committee. Nonetheless, the major bottleneck remains the Senate floor. Senator Mitch McConnell (R-Ky.), the Minority Leader, has refused to promptly enter time agreement for votes. The unanimous consent measure enables one senator to halt floor votes, and this procedure has stalled many nominees.

Republican insistence that the upper chamber hold recorded votes for all circuit and many district nominees has also consumed valuable time. Most problematic has been Republican refusal to conduct votes on noncontroversial nominees, inaction which violates a long Senate tradition. When the upper chamber has eventually voted on nominees, the Senate has confirmed most by substantial majorities and a number without opposition. For instance, all four nominees confirmed as the Senate recessed had waited nearly three months for votes only to win unanimous appointment.

The 179 appellate court judgeships, 17 of which are empty, are vital, as the 12 regional circuits are the tribunals of last resort in their areas for 99 percent of the cases. Critical are the D.C., Fourth, Tenth and Eleventh Circuits, each of which has two openings and the Ninth Circuit that has three vacancies.

Obama has submitted 33 superb nominees, and he should keep cooperating with Leahy and Senator Harry Reid (D-Nev.), the Majority Leader, who schedules floor debates and votes, and their Republican counterparts to foster smooth confirmation while nominating excellent candidates for the remaining six vacancies. The Senate has approved nineteen nominees; thus, the chamber must promptly confirm the five who have panel approval and are awaiting floor confirmation and finish review of the other six.

The 679 district judgeships, 75 of which are vacant, are crucial because district judges hold federal trials and ascertain the facts, while appellate courts sustain 80 percent of appeals from their determinations. Presidents ordinarily defer more to home-state elected officers, as they are familiar with attorneys who have fine qualifications. Obama has nominated 120 highly competent individuals and must quickly nominate candidates for the 32 vacancies that lack nominees. The Senate has confirmed 76, so it must swiftly approve the 21 waiting for floor action and conclude processing of the remaining 22.

The vacancies in ten percent of federal appeals and district court judgeships undermine fast, inexpensive and fair case resolution. Thus, President Obama must promptly nominate, and senators must expeditiously confirm, numerous talented 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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