Commentary: Checking in on Fourth Circuit vacancies

When President Barack Obama was inaugurated, four of fifteen judgeships were open on the U.S. Court of Appeals for the Fourth Circuit.

Thus, it was critical that the new administration and the 111th Senate promptly fill these vacancies because openings in a quarter of the judicial contingent impede appeals' swift, economical and fair disposition.

Thirteen months later, it is fair to ask: How are the chief executive and the Senate doing? The answer is better than they were last autumn but not sufficiently well.

Although the President has implemented practices that should facilitate the appointments, four judgeships remain empty. Nevertheless, the prospects for success in 2010 seem more promising. The Senate's return from its recess for Presidents' Day supplies valuable perspective on the selection process.

It is easy to see why the vacancies are crucial. For two and a half years, the court has basically functioned absent 25 percent of its judges, a rate that erodes the tribunal's delivery of justice.

To guarantee that individuals and businesses in the Fourth Circuit secure the justice which is a fixture of the American court system, the Senate must quickly confirm Virginia Supreme Court Justice Barbara Milano Keenan for an empty position there and North Carolina Court of Appeals Judge James Wynn and Superior Court Judge Albert Diaz for two openings in that state. Moreover, President Obama should promptly nominate, and the Senate expeditiously approve, a nominee for the fourth vacancy, which is in South Carolina.

Since autumn, a few positive developments have occurred. In November, after protracted machinations, the Senate confirmed to the Fourth Circuit U.S. District Judge Andre M. Davis 72-16, thus at last filling the Maryland position that had been vacant since 2000 when revered Baltimore jurist Francis D. Murnaghan died. This confirmation was especially meaningful because Davis had been Murnaghan's law clerk and was initially nominated for the seat in Oct. 2000, which was too late in a presidential election year for confirmation.

On Sept. 14, at the instigation of Virginia Democratic Senators Jim Webb and Mark Warner, Obama nominated Justice Keenan who has served at the four levels of the Virginia judiciary, including almost 20 years on the state's Supreme Court. In early October, Keenan had a Judiciary Committee hearing at which Senator Jeff Sessions (R- Ala.), the ranking member, praised her as a "fine nominee." On Oct. 29, the panel approved Justice Keenan by voice vote and sent her name to the floor.

Today marks the four-month anniversary of the jurist's approval. Last Thursday, on the Senate floor, the Virginia senators praised Justice Keenan's fine qualifications, observed that the jurist enjoyed broad bipartisan support and urged their colleagues to promptly confirm her. The next day, Senator Webb announced that the Senate had scheduled a vote on Keenan for tomorrow. Because the jurist is well qualified and uncontroversial senators should vote to confirm her.

On Nov. 4, Obama nominated Judges Wynn and Diaz after thoroughly consulting North Carolina Senators Kay Hagan (D) and Richard Burr (R). At the jurists' Dec. 16 hearing, Hagan and Burr testified and expressed strong support for the judges. Senator Sessions graciously acceded to a single hearing for the two nominees, which is rare.

Unfortunately, the apparent hiatus in the confirmation wars indicated by the cooperative actions of Senators Burr and Session abruptly ended. The following day, when Senator Ben Cardin (D-Md.) urged Keenan's confirmation before the Senate recessed for 2009, Sessions analogized Democratic calls for prompt judicial confirmations to the child who whines about being an orphan after killing his parents.

The panel approved the North Carolina judges on Jan. 28, soon after returning for the second session, and the chamber must promptly confirm them. Davis, Keenan, Diaz and Wynn are smart, ethical, diligent and independent and have balanced temperament, while they earned the strongest ABA rating of well qualified.

Obama should also expeditiously consult home-state politicians and choose an excellent nominee for the South Carolina opening created when Chief Judge Karen Williams unfortunately retired. Republican Senators Lindsey Graham and Jim DeMint must cooperate with elected Democratic officials, such as Representative Jim Clyburn, and suggest outstanding candidates for the President's review.

Openings in a quarter of the Fourth Circuit's judgeships may not capture the public's attention, but they impose real difficulties. Obama and the first session of the 111th Senate made progress on filling those vacancies. The chief executive and the second session must promptly fill these seats, as the tribunal needs all of its judges to deliver appellate justice.


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