Several months ago on this website, I published a commentary urging President Barack Obama and the U.S. Senate to swiftly fill vacancies in two of the 15 Fourth Circuit judgeships because the openings can erode the prompt, inexpensive and fair disposition of appeals.
I specifically called for expeditious Senate approval of North Carolina Superior Court Judge Albert Diaz because the well-qualified, uncontroversial jurist was nominated in November 2009, while his nomination had languished since the Judiciary Committee unanimously reported him in January. The Fourth Circuit needed all of its members to deliver justice.
The Senate has failed to grant Judge Diaz an up or down vote, but the chamber must do so before it adjourns.
The Fourth Circuit is the tribunal of last resort for 99 percent of appeals taken from the district courts in North Carolina, South Carolina, Virginia, West Virginia and Maryland. Vacancies in two circuit seats can restrict rapid, economical and equitable resolution. For example, the tribunal now provides the lowest percentages of oral arguments and published opinions, which are helpful yardsticks of appellate justice. However, the Fourth Circuit does conclude appeals most quickly.
President Obama has instituted measures to swiftly fill empty posts. The White House consulted North Carolina Senators Kay Hagan (D) and Richard Burr (R), who expressed support for Judge Diaz. Obama nominated the jurist on Nov. 4, 2009. Senator Jeff Sessions (R-Ala.), the senior GOP Judiciary Committee member, courteously agreed to a quickly-scheduled hearing, which occurred six weeks after nomination. Hagan and Burr appeared at the hearing to indicate their support, and Burr actually requested that the committee quickly approve Diaz, so the opening might be filled. On Jan. 28, 2010, the panel reported Judge Diaz 19-0.
Obama carefully tapped Diaz because he had assembled an outstanding record in North Carolina’s judiciary as a Superior Court and Business Court Judge and in the military justice system. The ABA assigned Judge Diaz its strongest ranking - well qualified.
Because the Fourth Circuit has functioned with multiple vacancies for years, senators must take floor action before they adjourn. Senators Burr and Sessions should request the Senate leadership to immediately set a floor debate and vote.
In April, on the Senate floor, Senator Hagan asserted that “partisan bickering has continually blocked qualified, North Carolinians from confirmation,” although Obama had nominated a “highly qualified, experienced and fair minded North Carolina” judge by consulting Burr and her. In July, Hagan repaired to the floor and asked that senators vote. The lawmaker repeated Diaz’s excellent qualifications, invoked his unanimous panel vote and sought unanimous consent to consider the jurist.
Senator McConnell (R-Ky.), the Minority Leader, did not accede, contending that the Democratic Senate majority had confirmed a single Fourth Circuit nominee in the final Congress of the George W. Bush Administration and castigating Obama for recess appointing Dr. Donald Berwick to lead the Centers for Medicare and Medicaid Services.
In late July, President Obama requested that McConnell cooperate “to fill the vacancies that continue to plague our judiciary [and decried] the nominees who’ve been waiting months” for confirmation. However, senators departed for their August recess without considering Judge Diaz.
After the Senate returned, Obama reiterated his plea about Judge Diaz, who had “been waiting ten months.” The President stated that the nominee “is a widely respected state court judge, military judge, and Marine Corps attorney [who] was approved unanimously in the Judiciary Committee.” Obama proclaimed that McConnell “objected to a vote on his confirmation [and] basically admitted it was simply partisan payback,” elaborating that “we can’t afford that kind of game playing right now.”
Nonetheless, the Senate recessed for the midterm elections and for the Thanksgiving holiday without acting on Judge Diaz.
Since Nov. 29, when the chamber returned for its second lame duck session, rumors have circulated that Reid and McConnell are negotiating a deal to confirm some of the 38 judicial nominees whom the Judiciary Committee has approved. However, it remains unclear whether the package will include any appellate court nominees, especially Judge Diaz, who has waited much longer than any circuit nominee.
Openings in two of the 15 Fourth Circuit positions show that the Senate must confirm Judge Diaz before it adjourns. Swiftly filling the vacant posts is essential because the tribunal needs all of its members.
ABOUT THE WRITER
Carl Tobias is the Williams Professor at the University of Richmond School of Law.
McClatchy Newspapers did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of McClatchy Newspapers or its editors.
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