Now that the Senate is approaching the end of its lame-duck session after President Obama captured another term and Democrats enhanced their Senate majority, federal judicial selection warrants review. As of mid-December, the bench had 60 openings in the 679 district court judgeships, two of which were Middle District of Pennsylvania vacancies. Accordingly, President Obama must swiftly nominate, and the upper chamber must promptly consider, nominees, so that courts can deliver justice.
Some observers have asserted that the president suggested too few nominees during 2009, but the White House stepped up the pace after that. The administration has systematically pursued guidance and support from Republican and Democratic senators in states with openings before actual nominations. Obama has chosen uncontroversial individuals of even temperament who are smart, ethical, diligent, independent and diverse vis-á-vis ethnicity, gender and ideology.
Senator Patrick Leahy, D-Vt., the Senate Judiciary Committee chair, has quickly conducted votes, moving nominees to the floor, where they have languished for lengthy periods. For example, in late September, the Senate confirmed two nominees, even though the chamber could have considered 19 more whom the panel had approved. The Senate recessed without acting on any of those talented nominees, many of whom the committee reported with little merits opposition, because GOP senators refused to vote on them.
Republicans should cooperate more. The GOP has automatically held over nominee committee ballots for seven days without convincing explanations. However, the major bottleneck has been the Senate floor. Republican Leader Mitch McConnell, R-Ky., has infrequently entered time agreements for votes. The unanimous consent procedure, which the GOP employed in September, allows a lone senator to halt floor ballots. Most troubling has been Republican refusal to vote on excellent consensus nominees, inaction that violates chamber traditions. When the Senate has eventually voted, it has overwhelmingly confirmed many nominees like John Dowdell, who recently captured 95-0 district court approval.
The 60 district vacancies were essential because the courts resolve nearly all federal litigation. Obama has nominated 29 exceptional people. Two were Middle District of Pennsylvania nominees Matthew Brann and Malachy Mannion, who the White House nominated in mid-May and who were confirmed by the Senate on December 21. The ABA rated Brann, a long-time lawyer, unanimously qualified and ranked Mannion, an experienced magistrate judge, unanimously well qualified. They received a smooth late-June hearing in which both of Pennsylvania’s senators, Democrat Bob Casey and Republican Pat Toomey, voiced strong support for the nominees. The panel approved Brann and Mannion with one no vote against each July 19 and sent both to the floor, where they languished until last week.
Brann and Mannion deserved more rapid consideration, because the judgeships they will fill are “judicial emergencies” based on their length and the Middle District’s large caseload. The court also desperately needed the seats filled, as operating without 33 percent of its judgeships places more pressure on the tribunal’s judges and delays case resolution. Obama must continue rapidly proposing strong candidates for the 31 openings that lack nominees, as the White House did November 27 by tendering three experienced jurists for Eastern District of Pennsylvania vacancies. The Senate concomitantly must process nominees quickly.
The 58 district court openings erode the prompt, inexpensive and fair case disposition. Thus, as the lame-duck session draws to a close, President Obama must swiftly nominate, and the chamber must expeditiously consider, many judges, so the courts can dispense justice.
Carl Tobias is the Williams Chair in Law at the University of Richmond.