In late June, the Senate confirmed Magistrate Judge Robin Rosenbaum for the Southern District of Florida 92-3, while in early June, the Senate Judiciary Committee reported Circuit Judge Mark Walker for the Northern District of Florida by voice vote with a sole member opposed.
Nevertheless, the committee held over voting on Circuit Judge Brian Davis for the Middle District of Florida three times until the June 21 meeting when it approved Davis 10-7. Moreover, the panel only conducted a September hearing for Magistrate Judge Sherri Polster Chappell, who received nomination to the Middle District in June.
The federal judiciary still experiences 78 openings in the 858 appeals and district court judgeships, four of which are in Florida. These vacancies, that comprise nearly nine percent of the seats nationwide and even more in Florida, undermine expeditious, inexpensive and fair case resolution. Accordingly, President Barack Obama must promptly nominate, and the Senate should quickly approve, lower court nominees, so that the judiciary can deliver justice.
Some critics blamed President Obama for suggesting too few nominees his first year, but the White House has since accelerated nominations. Obama has aggressively consulted by seeking the advice of Republican and Democratic senators from jurisdictions where openings arise prior to official nominations. The administration has recommended uncontroversial nominees of even temperament, who are smart, ethical, hard working and independent and are diverse in terms of ethnicity, gender and ideology.
Senator Patrick Leahy (D-Vt.), the Senate Judiciary Committee chair, has swiftly arranged hearings and votes, sending nominees to the floor where a number have languished for months. For example, the Senate recessed in late September to campaign without acting on 19 strong nominees; many were nominated last year and have secured overwhelming committee approval.
Republicans should cooperate more. The primary bottleneck has been the Senate floor.
Senator Mitch McConnell (R-Ky.), the Minority Leader, has infrequently agreed on votes. The unanimous consent procedure, which the GOP employed in September, permits one member to halt floor votes; this practice has stalled numerous nominees. Most problematic has been Republican rejection of votes on uncontroversial competent nominees, conduct that violates Senate tradition. When senators have eventually voted, the chamber has confirmed most nominees by substantial majorities.
The 179 appellate judgeships, fourteen of which are empty, are crucial. Obama has proposed seven fine nominees, and he should continue cooperating with Leahy and Senator Harry Reid (D-Nev.), the Majority Leader, who schedules floor debates and votes, and their GOP counterparts to facilitate smooth approval while nominating well qualified candidates for the seven vacancies without nominees.
The 679 district judgeships, 64 of which are empty, are critical. The Middle District of Florida has two vacancies, while the Northern and Southern Districts each have one. Obama has nominated 27 very capable people system-wide. The President nominated Judge Davis for the Middle District and Judge Walker for the Northern District in February, while he nominated Judge Chappell of Fort Myers for the Middle District in June. Obama must promptly recommend candidates for the 37 openings that lack nominees.
The Senate confirmed Rosenbaum because she is well-qualified. The upper chamber did not vote on the other two equally qualified Florida nominees before recessing in September, but the Senate must vote on them when it returns in mid-November. The committee approved Judge Davis on June 21 10-7 with Senator Lindsey Graham (R-S.C.) not voting. Senator John Cornyn (R-TX) voted no, stating that he “had a concern about some intemperate language that dates back to 1995 in what otherwise appears to be an unblemished record [, that he hoped] to meet with Mr. Davis” and review the concerns and would “keep an open mind.” Judge Davis was held over a third time at the request of Senator Charles Grassley (R-Iowa), the Ranking Member, who seemed concerned about Davis’s answers to certain questions in the May hearing and written questions Grassley submitted later. On June 21, Grassley expressed concern regarding Davis’s views on several issues, especially involving race, and voted no. Finally, the Senate must expeditiously process Judge Chappell.
The administration should continue carefully consulting Florida Senators Bill Nelson (D) and Marco Rubio (R), who strongly support Walker, Davis and Chappell, and quickly suggest a competent nominee for the Southern District vacancy. The Senate, for its part, must swiftly consider that nominee.
The vacancies in 78 judgeships undercut prompt, economical and equitable disposition. Thus, President Obama must rapidly nominate, and senators must expeditiously confirm, numerous fine judges when the Senate returns for its lame duck session.
ABOUT THE WRITER
Carl Tobias is the Williams Chair in Law at the University of Richmond.
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.