When President Barack Obama was inaugurated, the United States Courts of Appeals had vacancies in fourteen of their 179 judgeships. Thus, it was critical that the new administration swiftly fill those openings.
The White House has adopted numerous practices to foster selection. However, many of the seats remain vacant and more have opened, as judges have retired or assumed senior status. The total of vacant seats is now 20.
A valuable illustration is the Aug. 7, 2009, Sixth Circuit nomination of Nashville attorney Jane Branstetter Stranch.
Because the unfilled appellate positions can undermine the bench's prompt, economical and fair disposition of appeals, the Senate must quickly confirm Ms. Stranch. Indeed, the Senate must confirm Stranch before its August recess because the Judiciary Committee approved her eight months ago this week, and she has waited longer than any nominee for a floor vote.
President Obama must also swiftly nominate, and the Senate expeditiously approve nominees for the remaining open judgeships.
There are a few reasons why the appellate courts have so many empty seats. Former President George W. Bush did not effectively fill some open Sixth Circuit positions. He rarely consulted with senators from jurisdictions where the vacancies materialized or selected consensus choices.
A pair of Michigan Sixth Circuit judgeships lacked occupants for a decade and were only filled when a 2008 compromise was reached.
Obama has applied several measures to swiftly fill all the present openings. He promptly consulted home-state elected officials before formal nominations. Many officers have worked closely with him and quickly recommended candidates, who are smart, ethical, independent and hard working and have balanced temperament.
Obama specifically consulted Tennessee Republican Senators Lamar Alexander and Bob Corker, and they agreed to back Ms. Stranch. The President nominated the practitioner in early August of 2009, while the panel accorded her an Oct. 21 hearing, which the Tennessee senators attended to voice their support. The Judiciary Committee approved the nominee by 15-4 on Nov. 19, 2009. Ms. Stranch has languished on the Senate calendar since then. She has now waited longer than all 20 other nominees whom the panel has approved, twelve of whom had no opposition.
Senator Patrick Leahy (D-Vt.), the Chair, and Senator Jeff Sessions (R-Ala.), the Ranking Member, must work together to secure Ms. Stranch's Senate floor debate and vote. Senator Sessions might cooperate with Senators Alexander and Corker 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.
On Tuesday, we witnessed similar cooperation on the Senate floor. Senator Leahy requested unanimous consent to consider Ms. Stranch's nomination Senator Alexander then thanked "the senator from Vermont for his request," while he observed that "Jane Stranch is a well-qualified nominee [who] is the longest pending circuit court nominee yet to be confirmed." Senator McConnell remarked that there were "some no votes on the nominee in committee" and that he would "...see if we can take this nominee up in the not-too-distant future, but for the short term, at least, I must object."
Obama carefully picked Stranch as his first nominee for the Sixth Circuit, which includes Kentucky, Michigan, Ohio, and Tennessee, because she has an outstanding record as a Nashville lawyer spanning multiple decades. The attorney earned the strongest ABA ranking of well qualified from a minority of its committee and a rating of qualified from a substantial majority. Notwithstanding Stranch's excellent background, the Senate has failed to set her floor debate and vote.
Openings in 11 percent of the federal appellate judgeships demonstrate that President Obama must expeditiously tap nominees for all the vacancies and the Senate must swiftly confirm them and Jane Branstetter Stranch before the August recess. Promptly filling the empty positions is essential because the tribunals require all of their judges to deliver justice.
ABOUT THE WRITER
Carl Tobias is the Williams Professor at the University of Richmond School of Law. He wrote this for McClatchy Newspapers.