Senator Patrick Leahy (D-Vt.), the Judiciary Committee chairman, has expeditiously conducted hearings and votes, moving nominees to the floor where numbers have languished for months. On September 22, the upper chamber recessed without considering 19 very qualified nominees having committee approval because the GOP would not vote.
Republicans must cooperate better. The primary bottleneck has been the floor. Senator Mitch McConnell (R-Ky.), the minority leader, has infrequently agreed on ballots. Particularly troubling has been GOP unwillingness to consider excellent consensus nominees, inaction that violates chamber traditions. When the Senate has eventually voted, it easily confirmed many nominees, like Mark Walker, who won 4-0 approval last week.
The three Central District openings are critical. Obama has suggested three highly qualified nominees. He should continue working closely with Leahy and Senator Harry Reid (D-Nev.), the majority leader, who arranges debates and floor votes, and their GOP counterparts to facilitate appointments.
Obama must also keep cooperating with California Democratic Senators Dianne Feinstein and Barbara Boxer. Both have established selection committees, which solicit applications, interview candidates and make suggestions to the legislators who correspondingly recommend prospects to the administration.
Those actions led Obama to nominate Central District Deputy Federal Public Defender Jesus Bernal on April 25, 2012, Central District Magistrate Judge Fernando Olguin on May 14 and Los Angeles County Superior Court Judge Beverly Reid O’Connell on November 14. Bernal served as Deputy Public Defender in the Los Angeles office for ten years and has since been the Directing Attorney of the Riverside office. He previously engaged in complex litigation for Los Angeles’ Heller, Ehrman law firm. Judge Olguin has been a Magistrate Judge since 2001. Judge O’Connell has served on the state bench since 2005, litigated civil cases at Morrison & Foerster for five years before that and earlier served as a Central District Assistant U.S. Attorney for a decade.
Senator Leahy swiftly arranged June hearings for the first two nominees at which Senators Feinstein and Boxer expressed their enthusiastic support. Senator Charles Grassley (R-Iowa), the Ranking Member, rigorously questioned both nominees. In July, the Judiciary Committee reported Bernal and Olguin on voice votes with Utah Senator Mike Lee voting no to protest Obama’s January Executive recess appointments. Senator McConnell (R-Ky.) entered an agreement for a floor vote on Bernal this week and should do so for Olguin before the Senate adjourns because they are well qualified and the Central District requires all of its judges to effectively address its huge, complicated docket. Judge O’Connell will testify at a Wednesday hearing, which the California senators will probably attend to voice their strong support, while Grassley is likely to carefully question the jurist.
The three Central District of California vacancies undermine justice. Thus, senators must quickly approve President Obama’s excellent nominees, so that the court can deliver justice.
Tobias is the Williams Chair in Law, University of Richmond.