Senator Patrick Leahy (D-Vt.), the Senate Judiciary Committee chairman, has swiftly arranged hearings and votes, forwarding nominees to the floor where many have languished over months. For example, in early August, the Senate recessed without acting on 22 excellent nominees whom the panel reported because the GOP would not vote on them.
Republicans must cooperate better. The major bottleneck is the Senate floor. Senator Mitch McConnell (R-Ky.), the Minority Leader, has rarely entered time agreements for votes. The unanimous consent procedure, which allows one senator to prevent floor ballots, has slowed numerous nominees. Most problematic has been GOP refusal to act on uncontroversial talented nominees, inaction that conflicts with Senate convention. When the chamber has ultimately voted, it has easily confirmed many nominees.
The 179 appellate judgeships, fourteen of which are open, are crucial. Obama has recommended 41 strong nominees. He should keep cooperating with Leahy and Senator Harry Reid (D-Nev.), the Majority Leader, who sets floor debates and votes, and their Republican analogues to promote smooth confirmation while nominating exceptional candidates for the eight vacancies without nominees. One is Judge Garza’s empty seat.
There is a second Texas Fifth Circuit position, which has remained unfilled since February when Judge Fortunato Benavides took senior status. Texas GOP Senators Kay Bailey Hutchison and John Cornyn have seemingly chosen to suggest no prospects for this opening because they hope that the Republican presidential nominee will win. Senator Hutchison has suggested that she will leave judicial nominations for whoever replaces her in November.
The Texas senators’ apparent decision against proposing candidates for Texas Fifth Circuit openings ignores the administration’s generous proffer to carefully evaluate candidates the senators tender. Inactivity of Hutchison and Cornyn complicates the Constitution’s selection process, which provides that the President nominates and with Senate advice and consent appoints judges because after Obama nominates the Texas senators can stop the Senate process by not returning blue slips. Refusing to suggest prospects effectively contravenes the senators’ arguments that the Constitution mandates yes or no votes for every nominee in President George W. Bush’s administration. Hutchison and Cornyn must also remember that inaction deprives Texas of Fifth Circuit representation by two more active members, federal law demands that each Fifth Circuit jurisdiction have one active judge, so only convention requires that the chief executive nominate a Texan for either unfilled post, and two Fifth Circuit vacancies impose unfair burdens on the court’s other judges while causing delay.
The administration must swiftly consult Hutchison and Cornyn about both Fifth Circuit openings and seek their proposals. The senators might revive their Judicial Evaluation Commission, which suggested numerous excellent district nominees whom the chamber overwhelmingly approved. If Hutchison and Cornyn do not tender candidates, the White House may want to submit strong consensus nominees whom the Senate in turn rapidly considers.
The 677 district judgeships, 64 of which are empty, are critical. Obama has nominated 156 highly capable people and must swiftly propose candidates for the 36 vacancies lacking nominees. The four Texas vacancies include two in the Eastern District and one each in the Southern and Western Districts. Moreover, two Southern District judges will assume senior status in the next half year. The openings are essential because Texas District caseloads have exceeded the national average, while the Western District filings have risen by twenty-five percent in the last half decade. The Texas senators revived their commission in May and called for prospects to submit applications. However, the senators have not sent names to the White House. Therefore, the administration must consult the senators and solicit recommendations, so that Obama may rapidly propose four excellent nominees. For its part, the Senate must swiftly process the nominees.
The openings in 78 judgeships undermine the delivery of justice. Thus, President Obama must promptly nominate, and senators must quickly approve, many fine judges before the presidential election further stalls the process.
Tobias is the Williams professor at the University of Richmond Law School.