Senate should not invoke 'Thurmond Rule' to block Kayatta nomination

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The First Circuit is the court of last resort for all but one percent of cases appealed from Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island districts. The court is the tiniest regional circuit. Thus, an opening in one of its six active judgeships can be crucial in sharp contrast, for instance, to the Ninth Circuit which has 29. Laboring absent a sixth of the contingent imposes unnecessary stress on the court’s other jurists and complicates prompt, inexpensive and fair case resolution. Although Judge Lipez has collegially retained a full docket of cases, he will soon take on a reduced caseload as is traditional for senior judges.

President Obama instituted actions to promptly fill the vacancy. The chief executive consulted Snowe and Collins, who proposed Kayatta, and Obama nominated the attorney in January because he had a long, sterling career practicing at Portland’s Pierce Atwood firm. The nominee correspondingly received the finest ABA ranking - well qualified.

The Judiciary Committee swiftly held a March hearing, at which the Maine senators voiced enthusiastic support. During April, the committee easily reported Kayatta. Senator Jeff Sessions (R-Ala.) voted no because the nominee was a member of the ABA Standing Committee on the Judiciary, which strongly ranked Supreme Court nominee Elena Kagan. Moreover, Senator Mike Lee (R-Utah) opposed Kayatta, continuing to protest Obama’s January 4 recess appointment of Executive officials.

Because the First Circuit requires all six active judges to function efficaciously, the Senate must quickly arrange floor action. Senators Snowe and Collins should request that chamber leaders quickly set a floor vote. The Maine senators recently repeated their avid support for Kayatta. Snowe observed: He is “superbly qualified and would be an outstanding” First Circuit member, and I have long “strongly supported his nomination” and will continue working with GOP and Democratic leaders on a floor vote. Collins contended it was unfair that election year politics was stalling “Bill, who would be a superb judge [and urged her] colleagues on both sides of the aisle to” grant him a final vote.

Senator Mitch McConnell (R-Ky.), the Minority Leader, must concur on Kayatta’s floor vote because the Thurmond Rule does not cover highly qualified, uncontroversial nominees. If McConnell, however, refuses to enter a voting accord, Senator Harry Reid (D-Nev.), the Majority Leader, should invoke cloture, as he did  in late July for Magistrate Judge Robert Bacharach, the excellent Tenth Circuit nominee. All the Democrats as well as Senators Snowe and Collins and Scott Brown (R-Mass.) supported cloture, but Bacharach did not attain the 60 votes required for a merits vote. Because Kayatta is a stellar nominee, Maine deserves prompt representation by an active First Circuit judge and the court needs all its members, Bacharach’s unsuccessful cloture vote and Reid’s statement that he was the last circuit nominee to receive floor consideration before the November election are not dispositive. Thus, Senators Snowe and Collins must strongly advocate cloture and urge many GOP members, especially Brown and Kelly Ayotte (N.H.), to support Kayatta’s cloture and merits votes, while Reid should schedule a September cloture vote.

An opening in one of six First Circuit judgeships shows that senators must rapidly approve William Kayatta. Prompt confirmation is essential because the tribunal needs all the judges to deliver justice.

Tobias is the Williams chair in law at the University of Richmond.