Judicial Vacancies Are Opportunity for Obama

Posted February 6, 2009 at 3:19pm

On Inauguration Day, a total of 55 U.S. federal circuit and district court judgeships were vacant. By May, another dozen seats will probably open as judges resign or assume senior status, a form of semi-retirement.

These status changes will bring the number of vacancies on the federal appellate and district benches to 67. The significant number of openings means President Barack Obama’s nascent administration must carefully fill those vacancies, so the federal courts may promptly, economically and fairly resolve cases.

One crucial task that the Constitution assigns the chief executive is judicial selection. The president nominates and, with Senate advice and consent, appoints life-tenured judges to the 13 U.S. Courts of Appeals and the 94 U.S. District Courts. For several decades, partisanship has plagued selection. However, the election of Obama and the new Senate, in which Democrats and independents will probably enjoy a 58-42 majority, provides a chance for a fresh beginning in choosing judges.

Since the 1980s, accusations and countercharges, partisan bickering and incessant paybacks between Democrats and Republicans have troubled appointments. These dynamics were often attributed to divided government, whereby one party controlled the White House, which nominates, and the other party possessed a majority in the upper chamber, which confirms. Although Democrats now control the presidency and the Senate, they should cooperate with the GOP to break this counterproductive judicial selection cycle.

Illustrative of the unproductive dynamics was the process in the administration of former President George W. Bush, particularly his final two years. Democrats asserted that he submitted ideologically conservative nominees who were not consensus picks and failed to consult Senators from the states in which openings arose before tapping candidates.

Indeed, Bush forwarded some nominees multiple times, even though Senators of his own party clearly opposed them. Republicans contended that Democrats did not promptly assess the Bush nominees by expeditiously scheduling Judiciary Committee hearings and votes or Senate floor debates and votes.

The 179 appellate judgeships, 14 of which were vacant on Inauguration Day, are critical because the regional circuits are the courts of last resort in their areas for 99 percent of appeals. Moreover, Republican appointees presently constitute majorities on virtually all those tribunals.

Obama, like his forerunners, ought to maintain responsibility for these nominations in the White House. He should maximize consultation by seeking guidance from Democratic and Republican Senators, especially home-state politicians, prior to formal nominations. The chief executive ought to submit consensus nominees, who are intelligent, hardworking, ethical and independent and have balanced temperaments. Obama must cooperate with Sen. Patrick Leahy (D-Vt.), the Judiciary chairman, who arranges hearings and votes; Sen. Harry Reid (D-Nev.), the Majority Leader, who schedules floor debates and votes; and their Republican analogues to facilitate the confirmation process.

The 678 district court judgeships, 41 of which were unfilled on Jan. 20, are important because district judges conduct practically all federal trials and find the facts, while appeals courts frequently affirm the decisions issued by district judges. The new administration should employ procedures like those suggested for appellate courts when choosing district judges. However, the president should generally defer more to the views of home-state Senators, who will often know many lawyers who are very qualified to serve on the district bench.

The numerous judicial openings, the inauguration of Obama and the convening of the 111th Senate afford a valuable opportunity for a fresh start in selection. If the administration and chamber practice bipartisanship, they should be able to foster the appointment of many outstanding judges who can expeditiously, inexpensively and fairly decide cases.

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