Commentary: Delaware District Court vacancies need filling fast

This week, the federal courts marked an important milestone when United States District Judge Joseph Farnan of the U.S. District Court for the District of Delaware retired after a quarter century of dedicated service.

Judge Farnan's action means that the judiciary has 100 openings out of the 858 appeals and district court judgeships and the District of Delaware has only two judges. These vacancies, which are eleven percent of the positions nationally and half of the Delaware seats, erode the delivery of justice.

Before the Senate leaves for its August recess on the 9th, it must confirm Magistrate Judge Leonard Stark to the Delaware District Court.

After the Senate returns from recess, President Barack Obama should promptly nominate, and the Senate must expeditiously confirm, lower court judges, so that the bench will be at full strength.

Since the 1987 fight over Judge Robert Bork's Supreme Court nomination, Democratic and Republican charges and countercharges as well as non-stop paybacks have plagued judicial appointments. Although Democrats presently control the White House and the upper chamber, they should work closely with Republicans to halt or ameliorate this counterproductive cycle.

The 179 appeals court judgeships, 20 of which are vacant, are critical, as the 12 regional circuits are the courts of last resort in their regions for 99 percent of cases. Crucial are the Second Circuit that has openings in three of 13 judgeships and the Fourth Circuit with vacancies in three of 15. President Obama has fully consulted by seeking guidance from Democratic and Republican home-state senators prior to actual nominations.

Obama has selected 22 consensus appeals court nominees who possess even temperament and are very intelligent, ethical, hard-working and independent as well as diverse vis-à-vis ethnicity, gender and ideology. The President should continue cooperating with Senator Patrick Leahy (D-Vt.), the Judiciary Committee chair, who arranges hearings and votes, Senator Harry Reid (D-Nev.), the Majority Leader, who schedules floor debates and votes, and their Republican analogues to facilitate appointment.

The Senate has approved nine of the nominees, so it must expeditiously confirm the seven waiting for floor votes and complete review of the other six.

The 679 district judgeships, 80 of which are open, are important because district judges conduct federal trials and determine the facts, while circuit courts uphold 80 percent of their determinations. The chief executive typically defers more to home-state senators' views because they are familiar with lawyers who have the requisite qualifications.

Delaware Democratic Senators Tom Carper and Ted Kaufman proposed Judge Stark, a highly-regarded Magistrate Judge, whom Obama recently nominated. The Judiciary Committee swiftly conducted a hearing for the nominee and unanimously approved Stark, who is waiting for a Senate vote.

The senators should also expeditiously recommend a candidate for Judge Farnan's vacancy. Obama has nominated 62 very capable nominees. The Senate has approved 21, so the chamber must promptly confirm the 16 awaiting floor consideration and finish processing the remaining 25.

The judicial vacancies and incoming cases mean that the Delaware district court has experienced a critical backlog because the Speedy Trial Act gives criminal cases precedence. The court has compensated for the judicial deficit by having judges from Pennsylvania and New Jersey handle civil cases. Although this supplement of judicial resources has been valuable, it is preferable to have judges who are permanently stationed in Delaware because they are more familiar with the local legal culture and the court's growing, complex docket.

The vacancies in eleven percent of federal appellate and district court judgeships undermine swift, inexpensive and equitable case disposition. This is especially true for civil cases in the District of Delaware, which only has two judges.

Thus, the Senate must confirm Judge Stark before the August recess. President Obama must also expeditiously nominate, and senators must promptly confirm, many outstanding judges prior to and after that recess.


Carl Tobias is the Williams Professor at the University of Richmond School of Law. He wrote this for McClatchy Newspapers.