This month, Judge J.L. Edmondson of the U.S. Court of Appeals for the Eleventh Circuit takes senior status after 26 years of dedicated service. His decision means that the bench has 76 openings in the 856 appellate and district judgeships, and both the Eleventh Circuit and the Northern District of Georgia have two in 12. These vacancies, which constitute 9 percent of the judgeships systemwide and 17 percent in the Eleventh Circuit and the Northern District, undercut the delivery of justice. Accordingly, President Barack Obama must promptly nominate, and the Senate expeditiously approve, circuit and district judges, so that the empty seats will be filled nationwide and in these two courts.
Obama has solicited the guidance of both Republican and Democratic senators whenever openings arose. He has submitted nominees of even temperament, who are intelligent, ethical, diligent and independent, and are diverse in terms of ethnicity, gender and ideology. Illustrations are Eleventh Circuit Judge Beverly Martin and Northern District Judge Amy Totenberg.
Senator Patrick Leahy (D-Vt.), the Judiciary Committee chairman, has swiftly arranged hearings and votes, forwarding nominees to the floor, where many have languished over months. For example, in late June, the Senate recessed without acting on any of 17 excellent nominees whom the panel approved because the GOP would not vote on them.
Republicans must cooperate better. The major bottleneck is the Senate floor. Senator Mitch McConnell (R-Ky.), the minority leader, has rarely entered time concords for votes. The unanimous consent procedure, which allows one senator to prevent floor ballots, has slowed numerous nominees. Most problematic has been GOP refusal to vote on uncontroversial talented nominees, inaction that conflicts with Senate convention. When the chamber has ultimately voted, it has easily confirmed many nominees.
The 179 appellate judgeships, 13 of which are open, are crucial. Obama has recommended 41 fine nominees. He should keep cooperating with Leahy and Senator Harry Reid (D-Nev.), the majority leader, who sets floor debates and votes, and their Republican analogues to promote smooth confirmation while nominating exceptional candidates for the six vacancies without nominees. One is Edmondson’s empty seat.
There is a second Georgia Eleventh Circuit position, which has remained unfilled since August 2010, when Judge Stanley Birch retired. In January, while the FBI was performing background checks on Bondurant, Mixon and Elmore partner Jill Pryor as a possible nominee for that position, Georgia Republican senators Saxby Chambliss and Johnny Isakson wrote White House Counsel Kathryn Ruemmler a letter stating they would “return ‘blue slips’ on” Troutman Sanders partner Mark Cohen for the Eleventh Circuit vacancy and Pryor for a Northern District vacancy; looked “forward to working with” Ruemmler on the nominations; and believed “time is of the essence.”
On February 16, Obama nominated Pryor for Birch’s Eleventh Circuit vacancy, but this year has yet to nominate anyone for the two Northern District vacancies. The Georgia senators have neglected to return their blue slips on Pryor. Therefore, Ruemmler must urge Chambliss and Isakson to return Pryor’s blue slip, so the Senate can quickly process her.
The White House counsel should also consult them about Edmondson’s opening. The senators should keep in mind that presidents have usually deferred less to home state senators on circuit nominations; minimal cooperation means Georgia has no Eleventh Circuit representation by an active judge; only convention demands that the chief executive nominate a Georgian; and vacancies in a sixth of the Eleventh Circuit judgeships place undue pressure on the other jurists. Obama then must rapidly pick a strong nominee for the Edmondson seat whom the chamber quickly processes.
The 677 district judgeships, 63 of which are vacant, are critical. Obama has nominated 154 highly capable people and must swiftly propose candidates for the 37 vacancies lacking nominees. Two are Northern District of Georgia positions for which Obama nominated U.S. Magistrate Judge Linda Walker and federal public defender Natasha Perdew Silas in early 2011. However, Chambliss and Isakson refused to sign blue slips on either nominee throughout 2011, and on December 17 the GOP returned Walker and Perdew Silas to Obama. The Georgia senators’ letter said that they would return blue slips on Pryor and Walker for the district court. The White House counsel must carefully consult the senators and attempt to resolve the apparent impasse, so that Obama may quickly submit two superb nominees. For its part, the Senate must promptly consider the nominees.
The openings in 76 judgeships erode the delivery of justice. Therefore, Obama must expeditiously nominate, and senators must swiftly approve, numerous superb judges before the presidential election additionally slows the process.
Carl Tobias is the Williams Professor at the University of Richmond School of Law.