Commentary: Obama must quickly fill Ninth Circuit vacancies

One of the most important responsibilities that the United States Constitution delegates to the President is appointing federal judges.

One of the initial assignments President Barack Obama should undertake in fulfilling this critical duty is naming excellent jurists for the two Ninth Circuit judgeships that are vacant.

Of the remaining eleven regional circuits, only the Fourth Circuit – with four openings – has more empty seats than the Ninth Circuit. However, the two Ninth Circuit vacancies are crucial. The Ninth Circuit is the court of last resort for 99-percent of appeals that come from district courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the North Mariana Islands.

The tribunal also decides highly controversial issues regarding terrorism, capital punishment, and freedom of speech. Among the appellate courts, the Ninth Circuit has the slowest disposition time and affords the third lowest percentage of published opinions, which are valuable measures of appellate justice.

There are several reasons why the Ninth Circuit has two openings. Democrats have asserted that former President George W. Bush tendered politically conservative nominees, who were not consensus picks, and neglected to consult senators from the states in which vacancies arose before he tapped nominees. Indeed, during the 110th Senate, the chief executive did not submit a nominee for Judge Stephen Trott's open Ninth Circuit position, even though the jurist assumed senior status in late 2004.

Republicans have claimed that Democrats did not expeditiously analyze nominees or promptly schedule Judiciary Committee hearings and votes or Senate floor debates and votes. In fairness, one Ninth Circuit vacancy did not technically occur until Jan. 21, the date on which 2008 legislation officially transferred a D.C. Circuit judgeship to the Ninth Circuit.

President Obama should apply numerous procedures that will enable him to fill these unoccupied seats quickly.

First, the new chief executive must practice bipartisanship. Obama must ameliorate the cycle of pernicious accusations and counter-charges, partisanship and continuous paybacks that have plagued judicial selection.

Second, the President should maximize consultation by seeking advice on candidates from Democratic and Republican senators, especially home state Senate members, prior to actual nominations. For example, Obama should solicit guidance from California's Democratic Senators Dianne Feinstein and Barbara Boxer before choosing nominees for the two openings. The chief executive ought to suggest consensus nominees, who possess balanced temperament and are very intelligent, ethical, independent and diligent.

The nascent administration must cooperate with Senator Patrick Leahy (D-Vt.), the Judiciary Committee chair, who schedules committee hearings and votes; Senator Harry Reid (D-Nev.), the Majority Leader, who arranges floor debates, and votes; and their Republican counterparts to expedite the confirmation process.

President Obama campaigned on a pledge to restore bipartisanship. His new administration can honor this promise with the prompt selection of two outstanding Ninth Circuit judges who can help the court deliver appellate justice.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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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