As the 112th Senate returns from its summer recess in this presidential election year, this is an ideal moment to evaluate federal court judicial selection. The bench experiences 77 vacancies in the 858 appellate and district court judgeships. The openings first reached 90 in August 2009 and have since remained near that number. These unoccupied positions, which comprise 9 percent of the seats, undermine prompt, economical and fair case resolution. Thus, President Barack Obama must swiftly nominate, and the Senate should expeditiously confirm, judicial nominees, so that the courts can deliver justice.
For the past several years, Republican and Democratic accusations, countercharges and paybacks have plagued judicial selection principally because of divided government. Democrats now control the White House and the Senate. However, the party should continue cooperating with Republicans and stop or reduce these counterproductive dynamics because the process will slow now that the nominating conventions have concluded.
Some observers criticized Obama for proposing insufficient nominees his first year, but the White House has since quickened the pace. The administration has sought the guidance and support of Republican and Democratic senators from jurisdictions where openings materialized before making nominations. Obama has proffered noncontroversial nominees, who are intelligent, ethical, diligent and independent, possess balanced temperament and are diverse in terms of ethnicity, gender and ideology.
Senator Patrick Leahy (D-Vt.), the Senate Judiciary Committee chairman, has rapidly conducted hearings and votes, sending nominees to the floor, but most of these nominations have languished there for months. For example, in early August, the Senate confirmed one nominee, although the chamber could easily have voted on another 22 nominees, whom the committee had reported. Indeed, the Senate recessed without considering any of those well-qualified nominees, most of whom the committee approved with one negative vote, because the GOP would not debate and vote on them.
Republicans should cooperate better. The GOP has routinely held over nominee votes for a week absent convincing reasons in the Judiciary Committee. However, the primary bottleneck has been the Senate floor. Senator Mitch McConnell (R-Ky.), the minority leader, has infrequently entered time agreements for votes. The unanimous-consent measure, which the GOP deployed in August, allows one member to halt floor ballots; this procedure has stalled many nominees. Most problematic has been Republican refusal to vote on noncontroversial strong nominees, inaction that contravenes Senate traditions. When the chamber has ultimately voted on nominees, it has approved many unanimously or by substantial majorities. For example, on September 10, the Senate confirmed Stephanie Marie Rose, 89-1, to a seat in the Southern District of Iowa.
The 179 circuit judgeships, 14 of which are open, are crucial because the 12 regional circuits are the courts of last resort in their geographic areas for 99 percent of the appeals. Obama has proposed 41 excellent nominees, and he should keep working with Leahy and Senator Harry Reid (D-Nev.), the majority leader, who arranges floor debates and votes, and their Republican analogues to facilitate smooth confirmation while nominating strong candidates for the eight openings that lack nominees. On June 13, the GOP leadership invoked the “Thurmond Rule,” saying that it would oppose votes on all appellate nominees until the election. Because this notion should not apply to well-qualified, consensus nominees, like First, Tenth and Federal Circuit nominees William Kayatta, Robert Bacharach and Richard Taranto, the Senate must vote on them soon.
The 679 district judgeships, 63 of which are vacant, are essential, as district judges conduct federal trials and determine the facts, while appeals courts affirm 80 percent of lower court decisions. Obama has nominated 156 highly competent individuals and must quickly suggest candidates for the 40 openings without nominees. For its part, the Senate must swiftly confirm nominees. Republicans should not invoke the Thurmond Rule because it lacks applicability to strong consensus nominees.
The vacancies in 77 judgeships undermine speedy, inexpensive and fair disposition. Thus, President Obama must promptly nominate, and senators must rapidly confirm, numerous superb judges before the presidential election shuts down the process.
Carl Tobias is the Williams Professor at the University of Richmond School of Law.