How President Obama Can Set a Key Example, and Send an Important Message, By Filling the Nation's Most Protracted Judicial Vacancy

By CARL TOBIAS

Wednesday, Feb. 4, 2009

For two decades, accusations and recriminations, partisan sniping and incessant paybacks have punctuated federal judicial selection. The quintessential example is the still-unoccupied vacancy created in the summer of 1994, when J. Dickson Phillips, a distinguished jurist on the U.S. Court of Appeals for the Fourth Circuit, assumed senior status. A replacement has yet to be chosen for Phillips, so the fourteen-year opening in his judgeship is clearly the entire nation's most protracted.

Because this vacancy exemplifies much that plagues judicial appointments President Barack Obama should immediately institute an effective selection process and promptly name a well-qualified judge to this empty seat. By doing so, Obama would not only resolve a longtime problem, but would also send a strong message that his appointments to the federal judiciary will be expeditious, fair, and marked by attention to both parties' input.

The Story of the Fourth Circuit's Unconscionably Long Vacancy

The Fourth Circuit now has openings in four of the fifteen active judgeships authorized for the tribunal, which is the court of last resort for all but one percent of appeals from North Carolina, Maryland, South Carolina, Virginia and West Virginia. The D.C., Third and Ninth Circuits each have two vacancies, while the other eight appellate courts have only one empty position, or none at all. Openings in a quarter of a tribunal's judgeships are significant because they can frustrate the delivery of justice. Among all the federal appeals courts, the Fourth Circuit grants the smallest percentages of published opinions and oral arguments, which are valuable yardsticks of appellate justice. These practices may well reflect the court's understaffed nature.

A few factors explain why Judge Phillips's seat has been unfilled for nearly one- and-a-half decades. To begin, because the jurist assumed senior status on July 31, 1994, it was effectively too late, in a mid-term election year, for the Senate to approve a replacement, had President Bill Clinton nominated a candidate. It took the President until late December 1995 to nominate a candidate: James Beaty, Jr., a U.S. District Judge for the Middle District of North Carolina. However, the GOP Senate majority failed to evaluate Beaty seriously -- in part because Senator Jesse Helms (R-N.C.) opposed the jurist.

Clinton then nominated James Wynn, a Judge of the North Carolina Court of Appeals, in August 1999; however, the Senate did not vote on the candidate and the 2000 election was impending.

Through eight years of the George W. Bush presidency, too, the seat remained vacant – due in part to President Bush's approach to judicial selection. Early on, the administration nominated Terrence Boyle, a U.S. District Judge for the Eastern District of North Carolina. Many Senate Democrats, particularly John Edwards (D.-N.C.), opposed Boyle. The opposition was, in part, payback for the GOP's rejection of Clinton nominees, but it also stemmed from Boyle's service as a legislative assistant for Helms and his decisions as a district judge.

Bush went on to nominate Boyle multiple times, although many senators, some of whom were Republicans, opposed the jurist. In early 2007, after Democrats had won a Senate majority, Bush concluded he would not renominate Boyle. That August, the President nominated Robert Conrad, a U.S. District Judge for the Western District of North Carolina, for the Fourth Circuit seat, but Conrad did not receive a Senate hearing.

How President Obama Should Go About Filling Phillips's Seat – and Ensuring This Kind of Delay Does Not Recur

Now, it has fallen to President Obama to fill the North Carolina opening. In so doing, President Obama should take a fresh approach, in several ways:

First, Obama should embrace bipartisanship and reject the counterproductive dynamics that have troubled the selection process. In particular, the President should solicit guidance on candidates from North Carolina's Senate members, Kay Hagan (D) and Robert Burr (R), prior to formal nomination. The senators have privately discussed the empty judgeship and have agreed that the deadlock must end. Both have promised to cooperate with the new President and each other. Burr expressed hope that there would be a fair process for analyzing candidates and described judicial selection as a field in which Democrats can reach across the aisle. A nominee acceptable to both Hagan and Burr will enjoy a powerful advantage.

To fill this vacancy and others, the administration ought to submit consensus nominees, who are smart, industrious, ethical, and independent, in addition to possessing balanced judicial temperaments. And, as with the Fourth Circuit spot, bipartisanship should always be part of the process. The story of how this seat remained empty under both Clinton and Bush is a cautionary tale about partisan judicial selection.

Fortunately, President Obama has vowed to practice bipartisanship. He can honor this pledge by swiftly adopting efficacious practices and, in the near future, by choosing an excellent replacement for Judge Phillips -- a person whose selection both parties can support. The prompt seating of a jurist in America's longest vacancy will have symbolic impact, by signaling that Obama intends to cooperate with the Senate on appointing judges. It will also have an important practical effect by according North Carolina representation on the Fourth Circuit tribunal, which needs all of its judges to best deliver appellate justice.


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

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