Carl Tobias

Why Filling Lower Federal Court Vacancies Must Be A Top Priority

By CARL TOBIAS


Thursday, October 15, 2009

It is well known that the United States Senate recently confirmed U.S. Court of Appeals Judge Sonia Sotomayor, President Barack Obama's first Supreme Court nominee. What is less well known, however, is that the new Justice was the only judicial nominee whom the 111th Senate had confirmed until this September -- when it approved the addition of Gerard Lynch to the U.S. Court of Appeals for the Second Circuit, and the addition of Jeffrey Viken to the U.S. District Court for the District of South Dakota.

Currently, more than ten percent of the federal appellate and district court judgeships that have been authorized still remain vacant. The persistence of these 95 openings impairs swift, economical and fair case resolution.

With the Senate having entered its tenth month, it has become even more urgent that President Obama promptly nominate, and the Senate expeditiously confirm, the dozens of lower court judges who are needed, if the federal judiciary is to operate at its full strength.

The Back Story: Why the Federal Courts Remain So Short-Staffed

For the last two decades, Democratic and Republican allegations and countercharges, as well as non-stop paybacks between the two parties, have plagued federal court appointments. Those dynamics have often resulted from divided government in which the President, who nominates candidates, represented one party, while the other party enjoyed a majority in the Senate, which confirms.

Now, Democrats control both the White House and the upper chamber of the legislature. Yet they should still cooperate with Republicans if they want to truly break this counterproductive selection cycle.

A good illustration of the unproductive dynamics that reigned in the past comes from the George W. Bush Administration, and particularly his final two years in office. Democrats claimed that Bush submitted strongly conservative nominees, who were not consensus picks, and then refused to consult even senators from the states where vacancies arose (as is both wise and traditional) before the official nominations occurred. Indeed, Bush even several times nominated candidates that GOP Senators in the relevant states opposed! In turn, Republicans alleged that, during this time, Democrats did not promptly evaluate the President's nominees or expeditiously arrange committee hearings, floor debates, or votes.

Obama Deserves Praise for Choosing Consensus Nominees and Consulting Home-State Democratic and GOP Senators For Input

The 179 appellate judgeships, 21 of which are now open, are critical because the 12 regional circuits are the courts of last resort in their areas for virtually all appeals. While Supreme Court cases are often the ones that make headlines, the lion's share of federal appellate decisionmaking belongs to the Circuits, not the High Court.

Currently, it is especially crucial that nominations be made, and nominees confirmed, to the Fourth Circuit, which has vacancies in five of its 15 judgeships, and to the Second Circuit with openings in four of its 13 judgeships.

President Obama, like his predecessors, has assumed lead responsibility for these nominations. Wisely, he has solicited guidance from Democratic and GOP home-state senators prior to actual nominations. In light of this process of consultation, it is no surprise that Obama has tapped ten consensus nominees of even temperament, who are very intelligent, ethical, industrious and independent, as well as diverse in terms of ethnicity, gender and ideology.

Now, the President must continue working closely with Senator Patrick Leahy (D-Vt.), the Judiciary panel chair, who arranges hearings and votes; Senator Harry Reid (D-Nev.), the Majority Leader, who schedules floor debates and votes; and their GOP analogues to speed confirmation. The Senate has confirmed only one of the nominees; now, it must promptly approve the four who are awaiting floor votes and finish processing the other five.

District Judgeships Cannot Be Forgotten

Meanwhile, filling the nation's 678 district judgeships, 74 of which are empty, is also critical. District judges preside over practically all federal trials. Their rulings are affirmed in 80 percent of appeals – in part because their fact findings are entitled to substantial deference from federal appellate judges. Thus, as with the federal appeals courts, we should not forget that while the Supreme Court may draw headlines, tremendous practical power is lodged in the federal district courts.

The White House should follow procedures resembling those proposed for appellate courts, when it comes to district court nominees. However, the President should generally defer more to home state senators' views when it comes to district court spots, than to appellate spots. Home state senators will be very familiar with numerous lawyers who possess excellent qualifications. And they likely deserve some substantial credit for the fact that, thus far, Obama has submitted 12 highly-qualified nominees.

The Obama Administration's Delays Have Been Entirely Understandable, But Now It is Time To Act

There are good reasons why, thus far, the Senate has confirmed only threejudges and Obama has nominated only 22 candidates. Appointing a new Justice before the October 2009 Supreme Court Term opened was crucial, and that urgency was exacerbated by the anticipation of the September 9 argument in a critical election law case. Justice Sotomayor's nomination and confirmation processes understandably consumed three months, in which little additional judicial selection activity occurred.

Moreover, prior administrations had left the Obama Administration with many complex problems that demanded immediate attention. These include the worst economic circumstances since the Great Depression, the Guantanamo prison, and the ongoing pressures of the conflicts in Iraq and Afghanistan. The White House and the Senate have devoted enormous time to developing policies for terrorism suspects' detention and the treatment of already-incarcerated detainees and to restoring America's international reputation in the area of human rights. But now it is time to look to everyday federal court justice again – and to ensure that our federal courts retain and earn their superb reputation.

One in ten federal appellate and district judgeships are vacant. These openings limit the federal bench's ability to resolve cases promptly, inexpensively and equitably. Thus, President Obama must expeditiously nominate, and senators must promptly confirm, a large complement of outstanding federal judges.


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

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