Now that the Senate has returned from its six-week recess, the upper chamber must expeditiously confirm John Gibney to the U.S. District Court for the Eastern District of Virginia.
Because Mr. Gibney, whom President Barack Obama nominated on April 14, 2010, is a very experienced practicing attorney and the active judgeship that he would occupy has been vacant for 1289 days, the Senate must swiftly confirm Mr. Gibney.
The Eastern District opening arose in May 2007, when U.S. District Judge Robert Payne assumed senior status after 15 years of dedicated service on the court which has a reputation for expeditiously resolving cases and has earned it the moniker “Rocket Docket.”
Judge Payne announced his intention to assume senior status nearly a year earlier, so as to afford President George W. Bush ample time for nominating and confirming his successor. However, Bush only nominated David Novak, a highly experienced, well-regarded Assistant U.S. Attorney on Nov. 15, 2007, and the 110th Senate never voted on Novak.
Once the 111th Senate assembled in January 2009, Virginia Democratic Senators Jim Webb and Mark Warner instituted endeavors that would propose extremely talented candidates for Mr. Obama’s consideration. Warner and Webb requested that a number of Virginia bar groups swiftly assess over a dozen individuals who applied for the vacancy and suggest names to the senators. The bar entities interviewed and evaluated the candidates and most strongly recommended three very qualified individuals - Mr. Gibney, Magistrate Judge Hannah Lauck and Fairfax County Circuit Court Judge Randy Bellows. Senators Webb and Warner in turn selected Mr. Gibney and recommended him to the President on Sept. 30, 2009.
John Gibney is smart, industrious, ethical and independent and has balanced temperament, while he earned the American Bar Association rating of qualified. Those attributes were on full display when Mr. Gibney testified in his April 28 Senate Judiciary Committee hearing. Senator Jeff Sessions (R-Ala.), the Ranking Member, actively questioned the nominee and lavished praise on Mr. Gibney for his three decades of extensive courtroom experience. On May 27, the committee approved Mr. Gibney without dissent and placed his name on the Senate calendar where he has been awaiting a floor debate and vote ever since.
These are several reasons why the Senate must promptly schedule a vote on Mr. Gibney. First, Judge Payne’s seat has remained open for three-and-a-half years. This means that the vacancy is a “judicial emergency” - one which has been “in existence more than 18 months where weighted filings are between 430 to 600 per judgeship” - as defined by the Administrative Office of the U.S. Courts, the judiciary’s administrative arm.
Second, more than a year has passed since the Virginia senators recommended Mr. Gibney to the White House. Requiring that candidates wait lengthy periods for nomination and confirmation unfairly makes the prospects place their careers and lives on hold. Third, the opening has required that Judge Payne carry a substantial caseload, even though most judges who assume senior status are responsible for considerably fewer cases.
Judge Payne has graciously pitched in to help his Eastern District colleagues guarantee that the court continues expeditiously, inexpensively and equitably resolving a large, important docket, while litigants, attorneys and the public are deeply indebted to the experience jurist for his excellent continuing service. However, the partisan squabbling that has left Judge Payne’s vacancy unfilled is not fair to a dedicated public servant who earned the right to take senior status three and a half years ago.
Senators Webb and Warner should urge Senator Harry Reid (D-Nev.), the Majority Leader, to schedule a swift floor debate and vote. If Senator Mitch McConnell (R-Ky.), the Minority Leader, does not agree to set the vote, the Virginia senators might ask Senator Sessions or Virginia Republican leaders, such as Representative Eric Cantor or Governor Bob McDonnell, to intercede and prevail on Senator McConnell.
When the Senate returns from its recess, the chamber must schedule a Senate floor debate and vote on John Gibney to fill the Eastern District of Virginia judgeship that has long been vacant. Gibney’s fine record means that he warrants prompt approval, while his abilities will help the court maintain its well deserved reputation as the Rocket Docket.
ABOUT THE WRITER
Carl Tobias is the Williams Professor at the University of Richmond School of Law.