Commentary: Time to fill lower federal court vacancies

The federal courts recently passed a significant milestone when United States Circuit Judge Stanley Birch of the U.S. Court of Appeals for the Eleventh Circuit retired after two decades of dedicated service. Judge Birch's action meant that the bench has 101 vacancies out of the 858 appellate and district court judgeships.

These vacancies, which are eleven percent of the positions, undercut the delivery of justice.

When the Senate returns from its August 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 Judge Robert Bork's 1987 Supreme Court nomination battle, Democratic and Republican allegations and recriminations as well as incessant paybacks have troubled judicial selection, mainly because of divided government. Democrats now control the White House and the Senate, but they should cooperate with Republicans to stop or limit this unproductive dynamic.

The 179 appellate judgeships, 20 of which are open, are essential because the 12 regional circuits are the courts of last resort in their areas for 99 percent of appeals. Critical is the Second Circuit that has three of 13 judgeships empty.

President Obama, has thoroughly consulted by soliciting advice from Democratic and Republican home-state senators before official nominations. For example, Maryland Democratic Senators Barbara Mikulski and Ben Cardin recommended U.S. District Court for the Maryland District Judge Andre Davis for a Fourth Circuit vacancy created in 2000 when Judge Francis Murnaghan died. On April 2, 2009, the President nominated Judge Davis, and, in November, the Senate confirmed the jurist 72-16 to the Fourth Circuit.

Obama has tapped 22 consensus circuit nominees who have balanced temperament and are smart, ethical, diligent and independent and diverse in terms of ethnicity, gender and ideology. The President should keep working closely 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 Republican counterparts to expedite confirmation.

The Senate has confirmed ten of the nominees, so it must promptly approve the six awaiting floor votes and conclude scrutiny of the remaining six.

The 679 district court judgeships, 81 of which are vacant, are critical because district judges hold trials and ascertain the facts, while appellate courts affirm four-fifths of their decisions. The President usually accords greater deference to home-state senators' perspectives because they know attorneys with the appropriate qualifications. The Maryland senators recommended Magistrate Judges James Bredar and Charles Day and Maryland Special Court of Appeals Judge Ellen Lipton Hollander for three Maryland district court vacancies in December 2009. Obama nominated Judges Bredar and Hollander on April 21 and Judge Day on July 21. The Judiciary Committee swiftly conducted May 13 hearings and June 10 favorable panel votes for Judges Bredar and Hollander, but the Senate has yet to consider them on the floor.

Judge Day has not received a hearing. Thus, three of ten authorized judgeships remain open, which imposes pressure on the active judges. Obama has nominated 63 highly competent district court nominees across the country. The chamber has confirmed 24, so it must promptly approve the 13 waiting for floor action and complete processing of the other 26.

The vacancies in one of nine federal appeals and district court judgeships nationally and in thirty percent of ten judgeships on the Maryland District erode prompt, economical and fair case resolution. Thus, President Obama must swiftly nominate, and senators must quickly confirm, many outstanding judges when the Senate returns Monday from August recess.


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