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Carl Tobias

Filling the Vacancies on the U.S. Court of Appeals for the Third Circuit


Tuesday, December 15, 2009

When President Barack Obama took the oath of office, the United States Court of Appeals for the Third Circuit was experiencing openings in two of its 14 judgeships. Thus, it was important for the new Chief Executive to promptly fill these vacancies. And President Obama did just that: The White House soon nominated two well-qualified U.S. District Judges, Joseph Greenaway and Thomas Vanaskie. The Judiciary Committee approved both. However, the Senate has not yet confirmed the jurists.

Because the Third Circuit's lingering openings can erode its ability to provide prompt, economical, and fair dispositions of appeals, the Senate should swiftly approve both judges. Indeed, the Senate should confirm Judges Greenaway and Vanaskie this month, given the nominees' excellent qualifications and the fact that one of the vacancies has been open for nearly four years and the other has remained unfilled for more than three.

The Effect of, and Genesis of, the Third Circuit's Longtime Vacancies

The Third Circuit is the final stop for 99 percent of the appeals arising from the federal district courts in Delaware, New Jersey, Pennsylvania and the Virgin Islands. In light of this important responsibility, it is troubling that the court currently experiences vacancies in two of its 14 seats.

These empty positions can undermine the delivery of justice. It is telling, for example, that the Third Circuit presently affords the second-lowest percentages of oral arguments and published opinions among all the federal courts of appeals. These metrics suggest that the quality of the justice meted out by the Circuit may not be as high as it would be if the Circuit enjoyed a full complement of judges. Litigants who learn that there will not be oral argument in their cases, or that opinions in their cases will not be published, may be disappointed and might lose some confidence in the federal judicial system.

These are a few reasons why the Third Circuit still experiences two openings. First, President George W. Bush was ineffective in attempting to fill those empty judgeships. He only infrequently consulted with senators from the jurisdictions where the vacancies arose, and he did not submit nominees on whom both Democrats and Republicans could agree.

For example, Bush did not consult New Jersey's Democratic senators before nominating Shalom Stone, whom the Democratic lawmakers then opposed. Accordingly, at the Bush Administration's conclusion, two of the tribunal's judgeships still lacked occupants.

President Obama Has Acted to Fill the Vacancies; Now the Senate Must Act, Too

Wisely, President Obama applied several techniques to promptly fill the Third Circuit vacancies. He expeditiously consulted the New Jersey senators before actually nominating Judge Greenaway, and consulted the Pennsylvania senators prior to officially tapping Judge Vanaskie. These senators cooperated with the administration and swiftly proposed the nominees, each of whom is very intelligent, ethical, independent and diligent and has even temperament.

Obama nominated Greenaway on June 19, and he received a September 9 hearing and Judiciary Committee approval on October 1. Obama nominated Vanaskie on August 7, while the jurist had a November 4 hearing and received panel approval on a December 3 vote of 16-3.

The White House carefully selected Judge Greenaway and Judge Vanaskie as its nominees to the Third Circuit because each jurist had compiled a lengthy, distinguished record as a U.S. District Judge. Both judges earned the highest ABA rating, well-qualified. Moreover, the two home-state senators for each nominee have strongly supported the nominations. Yet, despite the jurists' excellent service and these strong recommendations, neither has been scheduled by the Senate for a floor debate and vote.

The Senate should expeditiously confirm Judge Greenaway and Judge Vanaskie this month. Failing to move forward with excellent nominees like these can exact a toll on the quality of appellate justice.

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

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