Tobias: Senate Must Move Swiftly on Court Vacancies

Posted February 1, 2010 at 6:43pm

On New Year’s Eve, the federal courts passed an important milestone when United States District Judge Paul Friedman of the District of Columbia assumed senior status after 15 years of dedicated service. Judge Friedman’s semi-retirement meant that the judiciary had 98 openings out of the 858 appeals and district court judgeships, while three more judges have taken senior status and one has been confirmed in 2010.

[IMGCAP(1)]These vacancies — 11 percent of the total positions — erode the delivery of justice. Now that the Senate has been back from its recess for the past few weeks, 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 the 1987 fight over Judge Robert Bork’s Supreme Court nomination, Democratic and Republican charges and countercharges as well as nonstop paybacks have plagued judicial appointments, mainly because of divided government. Although Democrats currently control the White House and the Senate, they should work closely with Republicans to halt or ameliorate this counterproductive cycle.

The 179 appeals court judgeships, 19 of which are vacant, are critical, as the 12 regional circuits are the courts of last resort in their regions for 99 percent of cases. Crucial are the Second Circuit, which has openings in four of 13 judgeships, and the Fourth Circuit, with vacancies in four of 15.

Obama has fully consulted by seeking guidance from Democratic and Republican home-state Senators prior to actual nominations. Obama has selected 12 consensus nominees who possess even temperament and are intelligent, ethical, hardworking and independent as well as diverse in regard to ethnicity, gender and ideology. The president should continue cooperating with Judiciary Chairman Patrick Leahy (D-Vt.), who arranges hearings and votes, Majority Leader Harry Reid (D-Nev.), who schedules floor debates and votes, and their Republican analogues to facilitate appointment. The Senate has approved four of the nominees, so it must expeditiously confirm the five waiting for floor votes and complete review of the other three.

The 679 district judgeships, 80 of which are open, are important because district judges conduct federal trials and determine the facts, while circuit courts uphold 80 percent of their determinations. The chief executive typically defers more to home-state Senators’ views because they are familiar with lawyers who have the requisite qualifications. Obama has nominated 26 very capable nominees, five of whom he tapped on Jan. 20. The Senate has approved 10, so the chamber must promptly confirm the three awaiting floor consideration and finish processing the remaining 13.

That the Senate has approved 14 judges and Obama has nominated 38 individuals are not criticisms of the president or the Senate. Appointing a new Supreme Court justice before the October 2009 Supreme Court term began was critical. Justice Sonia Sotomayor’s confirmation process consumed three months during which little additional judicial selection activity transpired. The previous administration also left numerous complex problems, such as the deep, ongoing recession; the Guantánamo Bay, Cuba, prison; and the Iraq and Afghanistan conflicts, which required much executive and Senate energy and time.

The vacancies in 11 percent of federal appellate and district court judgeships undermine swift, inexpensive and equitable case disposition. Obama must expeditiously nominate, and Senators must promptly confirm, many outstanding judges.

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