Commentary: Time to confirm N.C. Fourth Circuit nominees

When President Barack Obama was inaugurated, the United States Court of Appeals for the Fourth Circuit experienced vacancies in four of the court's 15 judgeships. Accordingly, it was imperative that the administration expeditiously fill these openings. The chief executive has implemented practices to facilitate selection, but three of the positions remain unoccupied fifteen months later.

Valuable examples of these circumstances are the Nov. 4 nominations of North Carolina Superior Court Judge Albert Diaz and North Carolina Court of Appeals Judge James Wynn to the tribunal. Because the Fourth Circuit's three open seats can restrict prompt, economical and fair appellate resolution, the Senate must swiftly approve both nominees.

Obama should also rapidly nominate and the Senate must quickly confirm a nominee for the third vacant judgeship in South Carolina. Indeed, the Senate ought to immediately approve Judges Diaz and Wynn whose nominations have languished since the Senate Judiciary Committee overwhelmingly approved them in January because the tribunal needs all of its judges to deliver justice.

The Fourth Circuit, which is the court of last resort for 99 percent of appeals from North Carolina, South Carolina, Virginia, West Virginia and Maryland, presently has vacancies in one third of the court's 15 judgeships. These empty positions can frustrate expeditious, inexpensive and equitable disposition. For instance, the tribunal now provides the lowest percentages of oral arguments and published opinions, which are valuable yardsticks of appellate justice, although it resolves appeals most rapidly.

These are several reasons why the Fourth Circuit now has three open seats. President George W. Bush ineffectively attempted to fill several vacancies. The chief executive infrequently consulted with senators from jurisdictions where the openings materialized or selected consensus choices. Therefore, at the conclusion of the Bush Administration, four seats lacked judges.

President Obama has instituted a few measures to swiftly fill all the empty positions. The administration has promptly consulted the home-state senators prior to actual nominations. Numerous lawmakers have cooperated with the White House and quickly proposed candidates, who are smart, ethical, independent and hard-working and possess even temperament.

Obama specifically consulted North Carolina Senators Kay Hagan (D) and Richard Burr (R), and they agreed to back Judges Diaz and Wynn. The chief executive nominated the jurists in early November. Senator Jeff Sessions (R-Ala.), the Judiciary Committee Ranking Member, courteously agreed to the rare practice of conducting a single hearing for two circuit nominees, which was held in mid December. The two North Carolina Senate members attended the hearing and expressed strong support for the jurists. Senator Burr even urged the committee to expedite consideration of the nominees, so that two of the court's openings could be filled. On January 28, the Judiciary Committee approved Diaz on a 19-0 vote and Wynn 18-1.

Obama carefully selected Judges Diaz and Wynn as his Fourth Circuit North Carolina nominees because they had compiled excellent records as judges in this jurisdiction's courts and in the military justice system. Judges Diaz and Wynn secured the best ABA rating — well qualified. Senators Hagan and Burr have lauded the nominations. Because the Fourth Circuit has long functioned with numerous vacancies the Senate must expeditiously schedule Judges Diaz and Wynn for floor consideration. Senator Burr and Senator Sessions should ask Senator Mitch McConnell (R-Ky.), the Minority Leader, to cooperate with Senator Harry Reid (D-Nev.), the Majority Leader, in promptly scheduling floor debates and votes for the pair of North Carolina nominees. Indeed, on April 21, Senator Hagan took to the Senate floor, urging that her colleagues approve the jurists. She asserted that "partisan bickering has continually blocked qualified, North Carolinians from confirmation" but that Obama had nominated "two highly qualified, experienced and fair minded North Carolina judges" in consultation with Burr and her.

Openings in three of the 15 Fourth Circuit judgeships mean that senators must confirm Judges Diaz and Wynn this month, while President Obama must rapidly nominate a candidate for the third vacancy. Expeditiously filling the open positions is crucial because the court urgently requires all of its judges to deliver appellate justice.


Carl Tobias is the Williams Professor at the University of Richmond School Of Law. He can be reached by e-mail at ctobias@richmond.edu.