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On Feb. 7, President George W. Bush invited judicial nominees whose nominations are pending Senate confirmation to a reception at which he castigated the Senate for not approving them. This event is the kind of political stunt that his administration is so fond of orchestrating. If the White House would expend more time on identifying and nominating highly qualified consensus nominees by consulting and cooperating with senators to secure their confirmation and less time on ignoring senators, engaging in partisan bickering and mounting stunts, the White House, the Senate, the judiciary and the public would be better served. Bush need only look across the Potomac to Virginia openings on the 4th U.S. Circuit Court of Appeals and the Eastern District of Virginia for examples of how he might felicitously appoint judges. On Jan. 17, Duncan Getchell, a Richmond lawyer, asked the president to withdraw his 4th Circuit nomination. Getchell made a politically realistic determination because the Senate would probably not approve him in the 2008 presidential election year. This decision offers Bush an opportunity to cooperate with Virginia’s senators in selecting a consensus nominee to fill that empty Virginia seat, which is one of five on the 15-member tribunal. Warner and Webb’s nominees A major reason for Getchell’s lack of success was that Bush had ignored the bipartisan endeavors of senators John Warner, R-Va., and Jim Webb, D-Va., in suggesting that he nominate one of five very talented consensus candidates. The home-state senators recommended the names after performing a careful search in which they interviewed a dozen people whom they asked several Virginia bar entities to evaluate and propose. The candidates are very intelligent, diligent and independent and have balanced judicial temperament. Warner and Webb “spent many hours reviewing potential nominees and conducting personal interviews,” which prompted them last June to propose “five candidates [whom they found] eminently qualified.” Both senators were “fully prepared to strongly support” and recommend to the Senate for confirmation any of the five whom Bush might have chosen. This constructive approach, which would have facilitated smooth confirmation, is unusual, as bitter partisanship has long dogged appellate selection. In spite of the senators’ work, and although Getchell was not among the five people suggested, Bush nominated him in September. This led Warner to observe, “I steadfastly remain committed to the recommendations stated in my joint letter with Senator Webb to the president.” Webb remarked: “Despite our good faith, bipartisan effort to accommodate the President, the recommendations that Senator Warner and I made have been ignored.” Getchell’s nomination did not move in 2007. After he withdrew, Webb asked that the president “seize this opportunity to nominate a candidate who can garner bipartisan support [by choosing] one of the five outstanding jurists” Warner and Webb suggested. On March 13, Bush did so by nominating Virginia Supreme Court Justice Steven Agee. On Feb. 11, Eastern District of Virginia Judge Walter Kelley, whom Bush appointed in 2004, announced that he will resign, citing his professional interests and his family’s needs. This departure will leave the district with three of its 11 judgeships open. The court has a well-deserved reputation for its “Rocket Docket,” which refers to speedy case resolution, especially of civil suits. Kelley’s resignation will additionally hinder the court, which has been swamped by cases that involve crack cocaine and which has been stretched since last spring when district judges Thomas S. Ellis III and Robert Payne assumed senior status. Warner and Webb used a similarly extensive selection process that would yield highly capable candidates to replace Ellis and Payne. The senators promptly interviewed some dozen candidates whom they asked that bar groups analyze and suggest. Last May, after evaluating and personally interviewing a “very strong field of candidates,” they recommended seven extremely able individuals. In November, Bush nominated Mark Davis and David Novak from the seven. When the Senate returns from its Easter break, Bush should promptly nominate another one of the well-qualified consensus candidates suggested by Virginia’s senators for the 4th Circuit opening and one of the five excellent candidates they recommended to replace Kelley. The Senate must expeditiously confirm these nominees. Bush should then continue to nominate consensus candidates to other courts. If the president and the senators cooperate, they can fill the vacancies and improve the judicial selection process. Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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