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Carl Tobias

Elevating Judge David Hamilton to the Seventh Circuit


Tuesday, November 17, 2009

When President Barack Obama assumed office in January, fourteen of the 179 judgeships on the United States Courts of Appeals were unfilled. Thus, it was imperative that the new chief executive promptly fill these vacancies. Currently, however -- although Obama has instituted measures to facilitate appointments -- most of those positions are still empty, and a number more have opened up, as judges have retired or assumed senior status, so that the total number of openings is presently twenty, representing over ten percent of federal appellate seats.

Why are these 20 positions still open? One clear illustration of the difficulties involved in filling them is provided by the March 17 nomination of U.S. District Judge David Hamilton to the Seventh Circuit – as I will explain below. (As readers may know, the Seventh Circuit hears appeals arising from the federal district courts in Illinois, Indiana, and Wisconsin.)

Hamilton is the President's first federal appellate bench nominee. Because appellate openings can erode the courts' ability to resolve appeals swiftly, inexpensively, and fairly, and because Judge Hamilton is a strong nominee, the Senate should promptly confirm Judge Hamilton. Then, President Obama should expeditiously nominate, and the Senate should swiftly approve, judges for the remaining vacancies.

Indeed, it would be fitting for the Senate to confirm Judge Hamilton today, as that marks the eight-month anniversary of his nomination for this seat.

The Reason for the Continued Openings – as Illustrated by the Fourth Circuit

The Fourth Circuit is a good example of the problem. It is the final stop for nearly all appeals from its five states – Maryland, North Carolina, South Carolina, Virginia, and West Virginia. It epitomizes the vacancies problem, as the tribunal currently experiences openings in four of its 15 positions, over 25 percent of them – a situation that is likely to undermine the delivery of justice.

It is not surprising that this short-staffed court now provides the smallest percentages of oral arguments and published opinions of all the federal appellate courts. Oral arguments and published opinions are crucial measures of appellate justice; although the Fourth Circuit does resolve appeals the most quickly of all the federal circuits, at what cost? Imagine being a party to a case and finding that the court would not hold oral argument, or publish its opinion, on a matter so crucial to you.

Moreover, the Fourth Circuit is not alone. For example, the Second Circuit, which decides many important business disputes, now has openings in four of its 13 judgeships – over 30 percent.

Judge Hamilton's Nomination as a Case Study Revealing the Core Problem

Several reasons explain why the federal appellate courts have so many unoccupied positions. In the Fourth Circuit, for instance, President George W. Bush inefficaciously attempted to fill numerous vacant judgeships. He rarely consulted with senators from states where the openings arose, or selected consensus nominees. Therefore, at the end of his administration, four of the court's positions remained empty.

President Obama has employed a better approach, but it has yet to really bear fruit. In particular, Obama took several measures with the goal of promptly filling all the current vacancies. For instance, he has made it a practice to expeditiously consult home-state senators before making official nominations. Most Senate members have cooperated with the White House and promptly recommended gifted nominees – men and women who are very intelligent, ethical, independent and diligent and have balanced temperaments.

Focusing on the Hamilton nomination in particular illustrates Obama's approach. The President consulted Indiana Senators Evan Bayh (D) and Richard Lugar (R), and they enthusiastically supported Judge Hamilton. Obama nominated the jurist in March, while he received an April 1 hearing. When Republicans complained that prompt scheduling left them insufficient preparation time, Senator Patrick Leahy (D-Vt.), the Judiciary Committee chair, arranged a second, April 29 hearing. The Judiciary Committee then approved the jurist 12-7 on June 4. Senator Harry Reid (D-Nev.), the Majority Leader, scheduled Judge Hamilton's floor debate and vote for Tuesday, by filing a cloture motion nearly six months after the panel approved him.

Supported by a Republican Senator, Hamilton Should Not Be a Controversial Nominee

The White House carefully selected Judge Hamilton as the initial nominee because he had compiled a distinguished record as a U.S. District Judge in Indiana over a decade and a half. The jurist earned the highest ABA rating of well qualified. The President of the Indianapolis chapter of the Federalist Society – an influential national group of conservative lawyers, law professors, and law students -- lauded the nomination, stating: "I regard Judge Hamilton as an excellent jurist with a first rate intellect… His judicial philosophy is well within the mainstream."

Notwithstanding the jurist's excellent service and reputation, however, Republicans sharply criticized Judge Hamilton. For example, Senator Jeff Sessions (R-Ala.), the ranking Judiciary Committee member, asserted that "President Obama chose to set an aggressive tone by nominating Judge David Hamilton, a former board member and vice president for litigation of the Indiana chapter of the ACLU, as his first nominee." Sessions added that Hamilton's "nomination is clearly controversial," alleging that Hamilton has "drive[n] a political agenda,' embracing the "empathy standard [and] the idea of a living Constitution."

Sessions's criticism is unfair. Membership in, or representation of, entities – whether the ACLU or the Federalist Society – should not be a litmus test for selection or confirmation. Nor should the publication of a few decisions, over a substantial time on the bench, with which senators disagree.

Promptly filling the federal appellate vacancies is critical, because the appeals courts urgently require all of their members to deliver appellate justice. When a moderate nominee draws support from his home-state Republican Senator and praise from the President of his city's Federalist Society, the jurist should be swiftly confirmed.

Carl Tobias is the Williams Professor at the University of Richmond.

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