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Carl Tobias

Judge Andre Davis Should Be Elevated Now, and All the Fourth Circuit's Seats Filled Soon


Monday, September 14, 2009

On 2008's historic Election Day, the U.S. Court of Appeals for the Fourth Circuit was already experiencing vacancies in a troubling four of its 15 judgeships. Thus, it was critical even then that the new Chief Executive soon take steps to expeditiously fill those openings.

As of today, President Obama has instituted numerous measures to facilitate judicial appointments. However, those four judicial positions are still empty, and another Fourth Circuit seat has opened up with the recent, unfortunate retirement of Chief Judge Karen Williams – meaning that now, a full third of the Circuit's seats are empty. Of special concern is the seat that has remained vacant since Francis Murnaghan, the revered Baltimore jurist, died nine years ago last month.

The Senate should promptly confirm the current nominee – the well-respected, well-qualified U.S. District Judge Andre Davis -- to the Murnaghan position. Indeed, Davis's confirmation should be one of the first orders of business now that the Senate has returned from its August recess. Meanwhile, too, President Obama should swiftly nominate, and the Senate should promptly approve, judges to fill the four other vacancies.

The Genesis and Impact of the Fourth Circuit's Current Vacancies

The Fourth Circuit is the final stop for nearly all appeals taken from the five states it encompasses: Maryland, North Carolina, South Carolina, Virginia, and West Virginia. The current vacancies may thus significantly erode the delivery of justice.

Compared to the other 11 regional circuits, the Fourth Circuit now provides the smallest percentages of both oral arguments and published opinions in its cases; yet both are critical yardsticks of appellate justice. Granted, the Fourth Circuit also decides appeals more quickly than the other circuits, but both the actuality and appearance of fairness are enhanced by oral arguments and published opinions, which provide both litigants and the public with greater assurance that justice has been done.

There are a few reasons why the Maryland position has been vacant since August 31, 2000. Initially, this timing made it too late in a presidential election year for Senate confirmation, even though President Bill Clinton did nominate Judge Davis, who had served on the U.S. District Court for the District of Maryland since 1995, that October.

Then, President George W. Bush ineffectively attempted to fill this judgeship. He considered Peter Keisler, but Paul Sarbanes and Barbara Mikulski, Maryland's Democratic Senators, objected, as Keisler had not practiced in Maryland. In 2003, Bush nominated Claude Allen; however, Maryland's senators opposed Allen because he had practiced law minimally and not in Maryland. Allen's candidacy languished, and he later withdrew. During 2007, Bush nominated Rod Rosenstein, Maryland's U.S. Attorney, but Senators Mikulski and Ben Cardin (also a Democrat) preferred that Rosenstein remain the U.S. Attorney.

Analogous difficulties troubled attempts, during the Bush Administration, to fill the open Fourth Circuit positions in Virginia, North Carolina and South Carolina vacancies.

President Obama Was Wise to Consult States' Senators, And Should Soon Put Forward More Fourth Circuit Nominees

Laudably, President Obama employed several effective measures that led him to promptly choose a nominee to fill the Murnaghan seat. In particular, he expeditiously consulted the Maryland senators before making the actual nomination. The senators cooperated with the White House and promptly recommended Judge Davis, who is known to be very intelligent, ethical, independent, and diligent, and clearly possesses the kind of balanced temperament that best suits a judge.

Obama nominated Davis on April 2. Davis then received an April 29 hearing and gained the Judiciary Committee's approval, 16–3, on June 4. Senator Harry Reid (D - Nev.), the Majority Leader, should now expeditiously arrange Davis's floor debate and vote.

Although Davis's confirmation seems likely, it is still the case that no one has been nominated to the remaining four vacancies. Virginia Democratic Senators Jim Webb and Mark Warner have recommended Virginia Supreme Court Justice Barbara Milano Keenan for the Virginia opening. President Obama should promptly assess that suggestion. Meanwhile, North Carolina Democratic Senator Kay Hagan has appointed a panel to vet candidate; the panel has sent her proposals, and she has been discussing with the White House a suitable nominee for the empty North Carolina seat. Finally, no recommendations have yet been publicly announced for the South Carolina vacancy created by Judge William Wilkins's 2007 assumption of senior status, or for Judge Williams's opening. (As Judge Williams only retired on July 8, however, more time may be needed for consideration and recommendations with respect to that additional vacancy.)

In sum, the current situation – with vacancies in 33 percent of the Fourth Circuit's judicial complement – cannot persist if justice is to be done. President Obama proceeded wisely with his nomination of Judge Davis. Now, he must expeditiously nominate candidates for the four openings and the Senate must promptly confirm them and Judge Davis. Quickly filling the vacancies is essential, as the court urgently needs all 15 of its judges to deliver the quality of appellate justice for which our federal courts are renowned.

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

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