Senate should advise and consent to pending judicial nominations

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Quite a few federal courts observers criticized Obama for proposing small numbers of nominees in 2009. Nonetheless, the White House accelerated nominations the next two years, doubling the 2009 output in both 2010 and 2011. The administration has aggressively sought the guidance and support of Republican and Democratic senators from states in which vacancies materialized ahead of official nominations. Obama has chosen uncontroversial persons, who are smart, ethical, industrious and independent, have even temperament and increase diversity in terms of ethnicity, gender and ideology.

Senator Patrick Leahy (D-Vt.), the Senate Judiciary Committee chair, has rapidly arranged panel hearings and votes, forwarding nominees to the floor where most have languished over prolonged periods. For example, in late September, the upper chamber confirmed two nominees, although the Senate could have easily acted on 19 other nominees, whom the committee had approved. The chamber actually recessed without considering any of those strong nominees, a majority of whom the committee reported without substantive opposition, because Republicans would not agree to vote on them.

The GOP ought to cooperate more. Republicans have routinely held over committee votes on nominees for one week absent convincing explanations. However, the primary bottleneck has been the chamber floor. Senator Mitch McConnell (R-Ky.), the minority leader, has rarely agreed to temporal concords for votes. The unanimous consent idea, which the GOP used in September, permits a lone member to stop floor ballots. Most problematic has been GOP refusal to vote on well qualified noncontroversial nominees, inaction that flouts chamber customs. When senators have ultimately voted, they have easily approved most nominees. Illustrative is Magistrate Judge Paul Grimm who won 92-1 confirmation for the U.S. District Court for the District of Maryland on Monday.

The 67 district openings are essential. Obama has nominated 36 highly competent individuals. One is Michael Shea, who chairs the appellate practice group at the well respected Day Pitney law firm in Hartford. Obama nominated Shea during early February. The ABA ranked Shea unanimously qualified. The nominee had an uneventful March 28 committee hearing. The panel reported him 15-3 on April 26 and sent Shea to the floor where he has been awaiting a vote ever since.

Shea deserves rapid consideration, principally because the District of Connecticut has a dire need for its openings to be filled. The circumstances are so desperate that Chief Judge Alvin Thompson has been reduced to requesting that judges from districts outside of Connecticut and as distant as Montana assist in handling the large caseload. Obama must quickly recommend candidates for the 31 vacancies without nominees, particularly the Connecticut opening created by the sad death of Judge Mark Kravitz. The Senate in turn must swiftly process the nominees.

The 67 vacancies erode expeditious, inexpensive and fair case resolution. Thus, as the lame duck session proceeds, President Obama must promptly nominate, and senators quickly confirm, many outstanding judges, so the judiciary can deliver justice.

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