Commentary: Filling lower federal court openings

On Monday, when United States District Judge Dale Kimball of Utah assumes senior status, a form of semi-retirement, the federal judiciary will pass a critical milestone.

Judge Kimball's assumption of senior status will mean that the federal courts presently experience 98 vacancies out of the 858 appellate and district court judgeships. These openings, which comprise eleven percent of the lower federal court judgeships, undermine expeditious, inexpensive and fair case disposition.

Now that the 111th Senate is nearing the end of its first session, President Barack Obama must swiftly nominate, and the Senate must promptly confirm, appeals and district court judges, so that the federal judiciary will be at full capacity.

Since the 1980s, Democratic and Republican accusations and recriminations as well as continuous paybacks have troubled judicial selection. Those dynamics frequently derived from divided government in which the President, who nominates, was from one party, and a majority of the upper chamber, which confirms, was controlled by the other party. Even though Democrats now hold the White House and the Senate, they ought to cooperate with Republicans to end this unproductive cycle.

An instructive example of the counterproductive dynamics was the process in the Administration of President George W. Bush, especially his last two years. Democrats contended that he proffered conservative nominees, who were not consensus choices, and did not consult senators from the jurisdictions where vacancies materialized prior to actual nomination. Mr. Bush even nominated some individuals multiple times, despite GOP senators' opposition. Republicans claimed that Democrats failed to expeditiously analyze Bush's nominees or promptly schedule committee hearings, floor debates or votes.

The 179 appellate judgeships, 19 of which are open, are crucial because the 12 regional circuits are the courts of last resort in their areas for 99 percent of appeals. Critical are the Second Circuit that has vacancies in four of 13 judgeships and the Fourth Circuit with openings in four of 15.

President Obama, like his predecessors, has taken lead responsibility for these nominations. He has maximized consultation by seeking advice from Democratic and GOP home-state senators before official nominations. Obama has chosen 12 consensus nominees of balanced temperament, who are very smart, ethical, diligent and independent as well as diverse in terms of ethnicity, gender and ideology. He must continue cooperating with Senator Patrick Leahy (D-Vt.), the Judiciary Committee chair, who schedules hearings and votes, Senator Harry Reid (D-Nev.), the Majority Leader, who arranges floor debates and votes, and their GOP counterparts to expedite approval.

The Senate has confirmed three of the nominees, so it must swiftly approve the four awaiting floor votes and finish processing the other five.

The 679 district judgeships, 79 of which are empty, are crucial because district judges hold nearly all federal trials and ascertain the facts, while their decisions are affirmed in four fifths of appeals. The White House generally defers more to home-state senators’ perspectives, as they will know many attorneys who possess fine qualifications. Obama has tapped 14 highly qualified nominees. The chamber has confirmed six of the nominees, so it must swiftly approve the four waiting for floor votes and complete review of the other four.

That the Senate has confirmed nine judges and Obama has nominated 26 candidates to date are not criticisms of the White House or the Senate. Confirming a new Supreme Court Justice before the October 2009 Supreme Court Term opened was critical, and that was exacerbated by the Sept. 9 argument in a crucial election law appeal.

Justice Sonia Sotomayor's nomination and confirmation processes required three months during which minimal other judicial selection activity happened. Earlier administrations also left numerous complicated difficulties requiring much attention. These include the worst economic situation since the Great Depression, the Guantanamo prison, as well as the Iraq and Afghanistan conflicts. The White House and the Senate have spent considerable time on addressing these complex issues.

Vacancies in one in nine federal appeals and district court judgeships erode prompt, inexpensive and fair resolution. Thus, President Obama must swiftly nominate, and senators must expeditiously confirm, many excellent judges.


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