This week, Judge William Bryson of the U.S. Court of Appeals for the Federal Circuit assumes senior status after 18 years of dedicated service. His action means that the federal judiciary has 17 vacancies in 179 active appellate court judgeships, and the Federal Circuit experiences three in 12. These openings — almost 10 percent nationwide and a quarter in the Federal Circuit — can undercut prompt, inexpensive and fair case resolution. Therefore, President Barack Obama must rapidly nominate, and senators expeditiously approve, judges to fill the empty seats.
President Obama has aggressively pursued guidance and support from Republicans and Democrats when vacancies materialized, before making nominations. The White House suggested nominees of balanced temperament, who are intelligent, ethical, diligent, independent and diverse in terms of ethnicity, gender and ideology. Examples are Federal Circuit Judges Kathleen O’Malley and Jimmie Reyna.
Senator Patrick Leahy (D-Vt.), the chairman of the Judiciary Committee, has swiftly scheduled panel hearings and votes, forwarding nominees to the floor, where many languished. For instance, in early August, the Senate recessed without acting on 22 strong nominees whom the committee reported because the GOP refused to vote.
Republicans should cooperate better. The critical bottleneck is the floor. Republican Leader Mitch McConnell (Ky.) has rarely agreed to votes. The unanimous consent practice, which allows a single member to halt ballots, has stalled many nominees. Most problematic has been GOP unwillingness to consider excellent consensus nominees, inaction that contravenes Senate tradition. When senators have voted, they easily approved most nominees.
The 179 appeals court openings are crucial because the circuits are the courts of last resort in 99 percent of appeals. Obama has proposed seven superb nominees. They include practitioner Richard Taranto whom the White House chose for the Federal Circuit vacancy created when Judge Paul Michel assumed senior status in May 2010. Obama should continue cooperating with Leahy and Democratic Leader Harry Reid (Nev.), who arranges floor debates and votes, and their Republican analogues to facilitate processing while nominating exceptional prospects for the 10 remaining openings. Two are Federal Circuit vacancies that arose when Judge Richard Linn assumed senior status in October 2012 and Bryson did so this week.
In November 2011, President Obama nominated Taranto, who earned the highest American Bar Association rating: well qualified. During February 2012, Taranto had a smooth Judiciary Committee hearing. On March 29, the panel approved the nominee by voice vote, with Senator Mike Lee (R-Utah) voting no as a protest to Obama’s January 2012 executive branch recess appointments. On June 13, 2012, McConnell invoked the “Thurmond Rule,” opposing all Obama circuit nominees until after the November elections.
Despite Obama’s re-election and Democrats’ increased Senate majority as well as urgent pleas for post-election votes on circuit nominees from Leahy and the nominees’ Republican and Democratic home state senators, the GOP would not agree to votes, and the 112th Senate adjourned in early January without considering the nominees, whose nominations expired. Thus, on January 3, Obama renominated all seven circuit nominees, including Taranto. Because Taranto is a highly qualified consensus nominee, the Judiciary Committee must swiftly reapprove him and the chamber should accord Taranto an immediate floor vote.
For its part, the White House must expeditiously nominate outstanding candidates for the vacancies created when Linn and Bryson recently assumed senior status. Because the Federal Circuit exercises nationwide subject matter jurisdiction over a broad range of appeals, mainly involving patents, the administration should quickly consider prospects across the country and swiftly nominate two superior candidates.
Vacancies in nearly 10 percent of appellate court judgeships and in one quarter of Federal Circuit positions can undermine the delivery of justice. Accordingly, Obama must rapidly nominate, and the Senate promptly consider, exceptional nominees for all of the appeals court openings.
Carl Tobias is the Williams Chair in Law at the University of Richmond School of Law.