Filling the Eleventh Circuit vacancies

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President Obama has vigorously consulted by seeking the advice of Republican and Democratic senators where openings materialized before official nominations. Obama has proffered nominees of balanced temperament, who are smart, ethical, hard working and independent, and are diverse vis-à-vis ethnicity, gender and ideology. For instance, he consulted Georgia Republican Senators Saxby Chambliss and Johnny Isakson, who enthusiastically supported Eleventh Circuit Judge Beverly Martin, and she won confirmation 97-0.

Senator Patrick Leahy (D-Vt.), the Senate Judiciary Committee chair, has quickly conducted hearings and votes, sending nominees to the floor where numbers have languished over months. For example, on June 29, the Senate recessed without considering any of 17 well qualified appellate and district nominees whom the committee approved because the GOP refused to vote on them.

Republicans should cooperate better. The principal bottleneck remains the Senate floor. Senator Mitch McConnell (R-Ky.), the Minority Leader, has infrequently entered time agreements for votes. The unanimous consent measure, which permits one member to halt floor ballots, has stalled many nominees. Most troubling has been GOP refusal to vote on noncontroversial strong nominees, inaction that contravenes Senate tradition. When the chamber has eventually voted, the Senate has overwhelmingly approved many nominees.

The 179 circuit judgeships, 13 of which are vacant, are critical. Obama has proposed 41 fine nominees and confirmed 30. He should continue working with Leahy and Senator Harry Reid (D-Nev.), the Majority Leader, who schedules floor debates and votes, and their Republican counterparts to facilitate smooth confirmation while nominating excellent candidates for the six openings lacking nominees. One is Judge Edmondson’s vacancy.

There is another Georgia Eleventh Circuit seat, which has been empty since August 2010 when Judge Stanley Birch retired. In January, Senators Chambliss and Isakson wrote White House Counsel Kathryn Ruemmler that they “would return blue slips’ on” Troutman Sanders partner Mark Cohen for the Eleventh Circuit and Bondurant, Mixon, Elmore partner Jill Pryor for the Northern District of Georgia, and that they “knew time is of the essence”

In mid February, Obama nominated Ms. Pryor for the Eleventh Circuit, and she earned the highest possible ABA rating: unanimously well qualified. The Georgia senators, however, have still not returned their blue slips. The recalcitrance of Chambliss and Isakson perverts the Constitution’s appointments process, which states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” judges. The senators’ refusal to accord Ms. Pryor a hearing flatly contradicts their January letter and their 2005 contentions in an Atlanta Journal-Constitution op-ed that “not only does the Constitution require an up-or-down vote, [the vote’s] denial goes against basic principles of fairness; it also is unprecedented in history.” Moreover, Chambliss and Isakson must remember that not cooperating deprives Georgia of Eleventh Circuit representation by an active judge, federal law requires each Eleventh Circuit state to have one active judge, so only tradition requires that the President nominate a Georgian for the Birch vacancy, and openings in one sixth of Eleventh Circuit seats place undue pressure on the court’s remaining ten judges while delaying and denying justice.

Ms. Ruemmler must also quickly consult the Georgia senators about Judge Edmondson’s vacancy. Obama then must swiftly choose an excellent nominee whom the Senate expeditiously processes.

The vacancies in 13 circuit judgeships undermine the delivery of appellate justice. Thus, President Obama should rapidly nominate, and senators expeditiously confirm, numerous outstanding judges before the presidential election further slows the process.

Tobias is the Williams Professor at the University of Richmond Law School.