The senators proposed Virginia Supreme Court Justice Barbara Keenan for the Fourth Circuit vacancy during mid-2009. The administration nominated her that September because she had been a pioneering member on the Virginia bench’s four levels, serving as a Supreme Court Justice since 1991. The judge captured the best ABA ranking, well qualified. She had a Judiciary Committee hearing and the panel easily reported her in October. Notwithstanding Keenan’s abilities, the GOP refused her a floor vote, prompting Senator Harry Reid (D-Nev.), the majority leader, to seek cloture. Republicans finally acquiesced, and Judge Keenan secured 99-0 cloture and final ballots in March 2010.
Obama then worked on filling an Eastern District opening created by District Judge Robert Payne’s May 2007 assumption of senior status. Judge Payne notified President George W. Bush of that decision months earlier to facilitate his replacement’s selection. However, Bush only nominated David Novak, an excellent assistant U.S. attorney, in November 15, 2007, and senators never voted on him.
Webb and Warner again requested the bar organizations screen applicants. They most strongly proposed three highly competent people, while the senators suggested John Gibney, an experienced litigator, recommending him during September 2009 to Obama, who nominated Gibney on April 14, 2010.
Gibney earned the ABA qualified rating. The nominee had an April 28 hearing in which Senator Jeff Sessions (R-Ala.), the senior Republican, lauded Gibney’s several decades of courtroom experience. A month later, the panel reported the nominee without dissent, but Gibney then waited over seven months on a floor vote. In December 2010, the chamber smoothly approved him.
Obama next considered the Western District vacancy resulting from Judge Norman Moon’s assumption of senior status in July 2010 and the second Eastern District opening prompted by Judge Jerome Friedman’s identical action that November. The senators employed analogous processes in evaluating applicants. On December 1, 2010, Obama nominated, and on January 5, 2011, renominated, Arenda Wright Allen, who had been an assistant U.S. attorney, for the Eastern District opening and Magistrate Judge Michael Urbanski for the Western District vacancy. The ABA ranked Allen qualified and Urbanski well qualified. During February 2011, the nominees testified at an uneventful hearing. During March, the panel overwhelmingly reported each nominee. In May, the Senate approved Allen 96-0 and Urbanski 94-0.
The Obama appointees have contributed much to the judiciary. For instance, Judge Gibney skillfully decided Texas Governor Rick Perry challenge to his exclusion from the Virginia GOP presidential primary ballot, and Judge Urbanski resolved well the controversy over a Ten Commandments display in the Giles County schools. None of the appointees is a “judicial activist”.
President Obama has effectively cooperated with Virginia’s senators to fill the federal courts with exceptional judges. He realized great success, despite the problems plaguing selection, phenomena manifested in slow appointment of Judges Keenan and Gibney.
Tobias is the Williams Chair in Law, University of Richmond.