Now that the 112th Senate has convened in the 2012 presidential election year for its second session, this is an ideal moment to analyze lower federal court judicial selection.
The bench experiences 87 vacancies in the 858 appellate and district court judgeships, three of which are in Georgia. These openings, which constitute ten percent of the positions, erode swift, economical and fair case disposition. Thus, President Barack Obama must expeditiously nominate, and the Senate should promptly confirm, lower court nominees, so that the courts can deliver justice.
Some observers criticized President Obama for suggesting too few nominees his first year, but the chief executive has since accelerated the pace. The administration has vigorously consulted by seeking the advice of Republican and Democratic senators from jurisdictions where openings materialized before official judicial nominations. Obama has proffered uncontroversial nominees, who are smart, ethical, hard-working and independent, possess balanced temperament and are diverse in terms of ethnicity, gender and ideology.
Senator Patrick Leahy (D-Vt.), the Senate Judiciary Committee chair, has quickly conducted hearings and votes, sending nominees to the floor where numbers have languished for months. On Dec. 17, 2011, the Senate recessed without considering any of 21 well-qualified nominees, 16 of whom the committee unanimously approved, on its calendar because the GOP refused to vote on them.
Republicans should cooperate better. The principal bottleneck remains the Senate floor.
Senator Mitch McConnell (R-Ky.), the Minority Leader, has infrequently entered time agreements for votes. The unanimous consent measure, which the GOP deployed in mid-December, permits one member to halt floor ballots. This procedure has stalled many nominees.
Most troubling has been Republican refusal to vote on noncontroversial, strong nominees — inaction that conflicts with a venerable Senate tradition. When the chamber has eventually voted on nominees, the Senate has overwhelmingly approved many.
The 179 circuit judgeships — 17 of which are vacant — are critical. Obama has proposed 39 fine nominees, and he should continue working with Leahy and Senator Harry Reid (D-Nev.), the Majority Leader, who schedules floor debates and votes, and their Republican counterparts to facilitate smooth confirmation while nominating excellent candidates for the eight openings that lack nominees.
One of these is a Georgia Eleventh Circuit seat which has been vacant since Aug. 2010, when Judge Stanley Birch retired. The press has reported that the FBI is conducting background checks on Bondurant, Mixon and Elmore partner Jill Pryor as a potential nominee for that seat. However, on Tuesday, Georgia Republican Senators Saxby Chambliss and Johnny Isakson wrote White House Counsel Kathryn Ruemmler a letter stating that they would “return ‘blue slips’ on” Troutman Sanders partner Mark Cohen, that “time is of the essence” and that they looked “forward to working with” her on the nomination. Thus, the White House should consult with the senators, who may want to remember that Presidents have traditionally deferred less to home state senators on appellate nominations. Obama then must swiftly choose an excellent nominee whom the Senate expeditiously processes.
The 679 district judgeships, 70 of which are open, are essential. Obama has nominated 136 very competent individuals and must quickly propose candidates for the 43 vacancies without nominees. Two are Northern District of Georgia positions for which Obama nominated Magistrate Judge Linda Walker and federal public defender Natasha Perdew Silas one year ago. However, the Georgia senators refused to return blue slips on the two nominees throughout 2011 and on Dec. 17, the GOP returned both nominees to the President. The Georgia senators’ letter said that they would return blue slips on Pryor and Walker for the district court, The White House must carefully consult with the senators and attempt to resolve the apparent impasse, so that Obama may quickly submit two superb nominees. For its part, the Senate must promptly consider the nominees.
The vacancies in 87 judgeships undermine swift, economical and fair resolution. Thus, President Obama must rapidly nominate, and senators must expeditiously confirm, numerous outstanding judges before the presidential election further slows the process.
ABOUT THE WRITER
Carl Tobias is the Williams Professor at the University of Richmond Law School.
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.