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Filling the Ninth Circuit vacancies
On May 21, the Senate finally approved superb attorney Paul Watford for the Ninth Circuit three months after his Judiciary Committee vote. However, the countryʼs biggest circuit still has two openings. Accordingly, the Senate must confirm Arizona Supreme Court Justice Andrew Hurwitz, the excellent committee-approved nominee, this week, while President Barack Obama must expeditiously nominate another prospect.
The Ninth Circuit has as many openings as each of twelve regional circuits except D.C. Its judges have twice their caseload, a backlog of 14,000 pending appeals and the slowest disposition time. These dockets make both vacancies “judicial emergencies” and undermine justice in the Ninth Circuit, the court of last resort for 99 percent of appeals from the West. In October 2010, Ninth Circuit Chief Judge Alex Kozinski wrote chamber leaders to stress the tribunalʼs “desperate need for judges,” urging action “on judicial vacancies without delay” because they mean the “public will suffer.” This month, he added: “If we don’t get more judges confirmed, delay in deciding cases will continue to increase.”
Obama has moved cooperatively to rapidly fill openings by decreasing the charges, gamesmanship and paybacks which have troubled appointments. He maximized consultation by soliciting guidance from Democratic and Republican senators prior to official nominations. For instances, following carefully sought advice from Arizona Republican Senators John McCain and Jon Kyl, Obama nominated District Judge Mary Murguia, who captured unanimous 2010 appointment. In 2011, he again consulted the senators, who strongly recommended Hurwitz.
Once the president chose nominees of balanced temperament, who are smart, ethical, independent and hardworking, he cooperated with Democrats and Republicans. However, the floor is the bottleneck. GOP members have incessantly rejected votes, even for nominees who have powerful home-state senator backing and would fill emergencies. The Senate required Nguyen to wait five months and Christen three after both received unanimous committee votes, confirming Nguyen 91-3 and Christen 95-3.
Watford enjoyed a smooth December hearing and won February 10-6 committee approval. Because Republicans refused a floor vote, Democrats invoked cloture, which the GOP vitiated on the afternoon of the final vote. Some Republicans voiced concern regarding his involvement in challenges to capital punishment and Arizona’s controversial immigration legislation. Hurwitz received a January hearing and a March 13-5 committee vote. Should Republicans vitiate Democrats’ cloture petition on Hurwitz, members ought to approve him Monday because the nominee is a very experienced jurist and earned the best ABA rating. If Republicans insist on a cloture vote, senators should favor cloture and expeditiously confirm Hurwitz. Several GOP members appeared concerned about his law review article, which allegedly assumed credit for enunciating Roe v. Wade’s premise.
Even should the Senate confirm Hurwitz, the second opening may remain. Obama has proposed no nominee for Judge Stephen Trott’s seat, although he took senior status in 2004, mainly because Idaho GOP Senators Mike Crapo and James Risch have argued Trott’s decision to sit in Boise makes his seat an Idaho one. Accordingly, Obama must consult the California members because Trott filled a California opening and perhaps the Idaho senators, as they may resist a California nominee. Obama should then quickly propose a strong nominee.
President Obama and the Senate must rapidly fill the Ninth Circuit vacancies with superb judges, so the tribunal can deliver justice.
Tobias is the Williams Chair in Law, University of Richmond.
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