Senator Patrick Leahy (D-Vt.), chair of the Senate Judiciary Committee, has rapidly set hearings and votes, propelling nominees to the floor where they have languished for protracted times. For instance, on September 22, the chamber confirmed two nominees, although it could have acted on 19 more, whom the committee had reported. The Senate recessed without voting on any of those excellent nominees, most of whom the committee approved with little substantive opposition, because GOP members declined to vote on them.
Republicans should cooperate more. The GOP has routinely held over nominee panel votes for a week without persuasive reasons. Nonetheless, the primary bottleneck has been the Senate floor. Republican Leader Mitch McConnell (R-Ky.) has rarely agreed on time accords for votes. The unanimous consent measure, which the GOP invoked during September, permits a sole member to prevent floor ballots. Most disconcerting has been Republican refusal to vote on strong consensus nominees, inaction that flouts Senate conventions. When senators have ultimately voted, they have easily approved many nominees like Lorna Schofield who won 91-0 district court appointment last week.
The 60 district openings are critical because the tribunals decide the vast majority of cases. Obama has nominated 29 strong individuals. Two are Middle District of Pennsylvania nominees Matthew Brann and Malachy Mannion whom the President nominated on May 17. Brann, an experienced practicing attorney, captured a unanimously qualified ABA ranking, while Mannion, an experienced Magistrate Judge, won a unanimously well qualified rating. The nominees had an uncontroversial June 27 in which Pennsylvania Senators Bob Casey (D) and Pat Toomey (R) expressed enthusiastic support for both nominees. The committee approved Brann and Mannion with one vote opposing each on July 19 and forwarded their names to the floor where the nominees have since been awaiting final votes.
Brann and Mannion warrant rapid action, because the seats they would occupy are “judicial emergencies” due to their length and the court’s docket. The Middle District also needs the openings filled because functioning without a third of its judgeships imposes additional burdens on the court's judges and stalls case disposition. Obama must keep quickly recommending exceptional prospects for the 31 vacancies without nominees, as he did on November 27 by proposing three experienced jurists for Eastern District of Pennsylvania openings. The Senate in turn must swiftly assess nominees.
The 60 district court vacancies undercut the fast, economical and equitable resolution of filings. Therefore, as the Senate lame duck session proceeds, President Obama must promptly nominate, and senators expeditiously approve, numerous judges, so the courts can deliver justice.
Tobias is the Williams Chair in Law at the University of Richmond.