With the Senate's reassembly for its lame duck session after President Barack Obama won another term and Democrats retained a Senate majority, this is an excellent time to evaluate the judicial vacancy crisis.
The judiciary presently experiences 67 openings among the 679 district court judgeships, two of which are in the Middle District of Pennsylvania. Accordingly, President Obama must rapidly nominate and the Senate quickly approve nominees so that the courts may dispense justice.
Certain observers criticized the President for suggesting too few nominees in 2009. However, the administration accelerated the process thereafter, recommending twice the number of nominees in both 2010 and 2011. The White House has assiduously pursued the guidance and support of Republican and Democratic senators from jurisdictions where vacancies arose before actual nominations. Obama has chosen uncontroversial prospects, who are smart, ethical, hard-working and independent, have balanced temperament and increased diversity in terms of ethnicity, gender and ideology.
Senator Patrick Leahy (D-Vt.), the Senate Judiciary Committee chair, has expeditiously arranged hearings and votes, forwarding nominees to the floor where most have languished over months.
For example, during late September, the Senate approved two nominees, although it could have considered 19 additional nominees, whom the panel had reported. The Senate recessed without acting on any of those excellent nominees, many of whom the committee approved with no or minimal opposition on the merits, because Republicans would not vote on them.
The GOP must cooperate better. The party has regularly held over committee votes for one week absent convincing reasons.
The major obstacle has been the chamber floor. Senator Mitch McConnell (R-Ky.), the Minority Leader, has infrequently entered time accords for ballots. The unanimous consent practice, which Republicans employed in September, enable one senator to halt floor votes. Most problematic has been Republican unwillingness to vote on strong noncontroversial nominees, inaction that conflicts with Senate customs. When the chamber has ultimately voted on nominees, it has confirmed most by overwhelming majorities.
The 67 district vacancies are essential because district judges resolve most cases pursued in federal courts. President Obama has nominated 36 highly competent individuals. Two are Middle District of Pennsylvania nominees Matthew Brann and Malachy Mannion whom the chief executive nominated in mid-May. Brann, a well regarded practitioner, secured a unanimously qualified American Bar Association ranking, while Mannion, a longtime Magistrate Judge, earned a unanimously well-qualified rating. The nominees received an uneventful June 27 panel hearing, which Pennsylvania Senators Bob Casey (D) and Pat Toomey (R) attended to voice robust support for Brann and Mannion. The committee reported both nominees with one no vote on July 19 and sent them to the floor where the nominees have since awaited Senate action.
The nominees deserve swift consideration, particularly because the vacancies they would fill are “judicial emergencies” due to their length and the district’s caseloads. The Middle District of Pennsylvania also requires that its two openings be filled, as vacancies in 33 percent of its judgeships impose pressure on the court’s judges and delay case disposition.
The White House must continue rapidly proposing exceptional candidates for the 31 empty seats that lack nominees, as it did last week when the administration nominated three experienced judges for the Eastern District of Pennsylvania vacancies. For its part, the chamber must quickly process nominees.
The 67 district court vacancies erode speedy, inexpensive and fair case resolution. Thus, now that senators have returned to continue the lame duck session, President Obama must promptly nominate, and senators expeditiously confirm, many strong judges, so the bench can deliver justice.
ABOUT THE WRITER
Carl Tobias is the Williams Chair in Law at the University of Richmond. He can be reached at firstname.lastname@example.org.
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