Constitution Day and lower federal court vacancies

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The federal judiciary experiences 77 openings in the 858 appeals and district court judgeships. The vacancies first soared to 90 three years ago and have since hovered close to that number. These unfilled seats, which constitute nine percent of the posts, erode the delivery of justice. Thus, President Barack Obama must expeditiously nominate, and the Senate ought to promptly approve, lower court nominees, so that the bench can operate effectively.

For the past quarter century and especially in the Obama Administration, Republican and Democratic charges, recriminations and paybacks have troubled appointments mainly due to divided government. Democrats currently control the White House and the upper chamber. However, the party must keep working with Republicans and halt or restrict these unproductive dynamics because confirmations are slowing now that senators are preparing to recess so they may campaign.

Some critics have blamed the President for suggesting too few nominees his initial year, but the administration has since accelerated the pace. The White House has robustly consulted by seeking the guidance of GOP and Democratic elected officials from states where vacancies arose before actual nominations. Obama has proposed uncontroversial nominees, who are smart, ethical, hard working and independent, have even temperament and are diverse vis-á-vis ethnicity, gender and ideology.

Senator Patrick Leahy (D-Vt.), the Senate Judiciary Committee chair, has quickly held hearings and votes, forwarding nominees to the floor where many have languished over months. For instance, near the August 3 recess, the Senate approved a single nominee, even though it could have voted on 22 more nominees, whom the committee had approved. The chamber actually left town without acting on one of those excellent nominees, many of whom the panel reported with few no votes, because the GOP refused to conduct final votes on them.

The GOP needs to cooperate more. Republicans have automatically held over nominee votes for seven days without persuasive reasons in the Judiciary Committee. However, the major bottleneck has been the chamber floor. Senator Mitch McConnell (R-Ky.), the minority leader, has rarely agreed to concords for votes. The unanimous consent procedure, which the GOP employed in August, permits a single senator to stop floor ballots; this practice has slowed many nominees. Most troubling has been GOP refusal to vote on noncontroversial talented nominees, inaction that flouts Senate conventions. When senators have eventually voted on nominees, they have confirmed some unanimously and most by substantial majorities.

The 179 appellate judgeships, 14 of which are empty, are critical because the courts are the tribunals of last resort in their geographic regions for 99 percent of the cases. Obama has suggested 41 exceptional nominees, and he should continue cooperating with Leahy and Senator Harry Reid (D-Nev.), the majority leader, who sets floor debates and votes, and their Republican counterparts to facilitate smooth appointment while nominating accomplished candidates for the eight openings without nominees. In mid-June, the Republican leaders adopted the “Thurmond Rule,” observing they would block votes on every appellate nominee until the election. Because this concept should not concern strong, consensus nominees, like First, Tenth, and Federal Circuit nominees William Kayatta, Robert Bacharach and Richard Taranto, the chamber must promptly vote on them.

The 679 district judgeships, 63 of which are open, are crucial, as district judges conduct federal trials and ascertain the facts, while circuits uphold 80 percent of lower court determinations. Obama has nominated 156 very capable people and must rapidly propose candidates for the 40 vacancies that lack nominees. The Senate in turn must quickly confirm nominees. The GOP should eschew the Thurmond Rule, as is does not apply to able consensus district nominees.

The openings in 77 judgeships erode fast, economical and fair resolution. Thus, President Obama must swiftly nominate, and senators must expeditiously confirm, numerous fine judges before the November elections end the process.

Tobias is the Williams Chair in Law at the University of Richmond.