Commentary: Senate should confirm Judge Diaz before recess

When President Barack Obama assumed office in Jan. 2009, the Fourth Circuit had openings in four of its 15 judgeships. Accordingly, it was urgent that the White House promptly fill these vacancies.

The Obama administration has instituted procedures to foster selection, but two seats remain open 20 months later. The two vacancies can limit swift, economical and fair resolution of appeals because the court requires all of its judges to deliver justice.

A helpful illustration of this issue is the Nov. 4, 2009, nomination of North Carolina Superior Court Judge Albert Diaz. The Senate must immediately confirm Judge Diaz whose nomination has languished since the Judiciary Committee unanimously approved him in Jan. 2010.

The Fourth Circuit is the court of last resort for nearly all appeals from North Carolina, South Carolina, Virginia, West Virginia and Maryland. Openings in two of its positions can prevent prompt, inexpensive and equitable disposition. The court now affords the fewest oral arguments and published opinions, which are instructive measures of appellate justice. This means that residents of these five states who sue over automobile accidents and appeal are less likely to receive oral arguments and published opinions than residents of the remaining eleven regional circuits.

A few reasons explain why the tribunal currently experiences two unfilled seats. President George W. Bush did not effectively attempt to fill several openings. Bush infrequently consulted with senators from states where the vacancies materialized or selected consensus nominees. Accordingly, at his administration's termination, four seats lacked occupants.

President Obama has adopted practices to expeditiously fill the open judgeships. He specifically consulted North Carolina Senators Kay Hagan (D) and Richard Burr (R), who supported Judge Diaz. Obama nominated Diaz in early Nov. 2009. Senator Jeff Sessions (R-Ala.), the Judiciary Committee Ranking Member, collegially agreed to a hearing, which transpired in mid December. The North Carolina senators attended the session to voice their support, and Burr even asked the panel to rapidly process the nominee, so the vacancy could be filled. On Jan. 28, the committee approved Judge Diaz 19-0.

Obama carefully chose the jurist as a North Carolina nominee because Diaz had compiled a superb record as a judge in the Tar Heel state's tribunals as a Superior Court and Business Court Judge and in the military justice system. Judge Diaz earned the highest ABA rating — well qualified. Because the Fourth Circuit has long operated with many openings the Senate must promptly schedule floor consideration. Senator Burr and Senator Sessions should ask the Senate leadership to promptly schedule a floor debate and vote.

Indeed, this spring, Senator Hagan made a Senate floor speech, claiming that "partisan bickering has continually blocked qualified, North Carolinians from confirmation," but that Obama had nominated a "highly qualified, experienced and fair minded North Carolina" judge by consulting with Burr and her.

This summer, Senator Hagan returned to the floor and urged her colleagues to vote. She reiterated the judge's strong qualifications and his overwhelming committee support and requested unanimous consent to vote on Diaz. Senator McConnell (R-Ky.), the Minority Leader, refused because the Democratic Senate majority had approved only one Fourth Circuit nominee in the Bush Administration's last Congress and because President Obama had bypassed the Senate in recess appointing Dr. Donald Berwick to head the Centers for Medicare and Medicaid Services.

In late July, President Obama asked McConnell "to work with us to fill the vacancies that continue to plague our judiciary [and decried] the nominees who've been waiting months" for confirmation. However, the Senate left for its August recess without voting on Judge Diaz

When the Senate returned, Obama repeated his plea about Judge Diaz, who has "been waiting ten months." Obama remarked that Diaz "is a widely respected state court judge, military judge, and Marine Corps attorney [who] was approved unanimously in the Judiciary Committee." The President declared that McConnell "objected to a vote on his confirmation [and] basically admitted it was simply partisan payback, while Obama added that "we can't afford that kind of game playing right now."

Vacancies in two of the 15 Fourth Circuit judgeships mean that senators must confirm Judge Diaz before the upcoming recess.


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

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