The GOP needs to cooperate more. The floor comprises the major obstacle. Republican Leader Mitch McConnell (Ky.) has rarely agreed to votes. Especially problematic has been GOP refusal to consider strong noncontroversial nominees, inaction that flouts Senate conventions. When senators have ultimately voted, they easily approved most nominees.
The four Northern District openings are essential. Obama has proposed two superb nominees. He should keep working closely with Leahy and Majority Leader Harry Reid (Nev.), who sets floor votes, and their GOP analogues to facilitate appointment while nominating exceptional prospects for the two vacancies without nominees.
Obama must also continue cooperating with California Democratic Senators Dianne Feinstein and Barbara Boxer. They have created merit selection groups, which seek applications, interview possibilities and make suggestions to the lawmakers who concomitantly provide Obama recommendations.
Those initiatives led him to nominate William Orrick III, Deputy Assistant Attorney General in the Department of Justice Civil Division, and Alameda County Superior Court Judge Jon Tigar on June 11. Both captured the highest ABA ranking: unanimously well qualified. Orrick entered Justice Department service after 25 years practicing at the well respected Coblentz, Patch San Francisco law firm. Judge Tigar has served on the Superior Court bench for a decade after litigating complex cases for eight years at the well regarded Keker & Van Nest San Francisco firm.
Senator Leahy rapidly arranged a July 11 nominee hearing at which Senators Feinstein and Boxer voiced robust support. Ranking Member Charles Grassley (Iowa) vigorously questioned each nominee. He expressed concern about Orrick’s Democratic Party political involvement but conceded that this participation ought not disqualify the nominee. In early August, the committee reported Tigar on a voice vote and Orrick 12-6 with Republican Senators Jon Kyl (Ariz.) and Lindsey Graham (S.C.) voting yes. On December 21, as the Senate recessed for the holiday, it confirmed Tigar. McConnell should also agree to Orrick’s vote before the Senate adjourns because he is extremely qualified and the Northern District has dire needs for all 14 judges. Last month, Senator Feinstein asserted that “it now takes over 50 percent longer for a case to go to trial than it did a year ago in the Northern District.”
President Obama must quickly nominate exceptional choices for the two other vacancies. The White House is apparently not evaluating suggestions now from California’s senators, so it might urge them to proffer candidates soon. Once the administration has nominated fine candidates, the chamber must swiftly review them.
Because the Northern District of California openings undermine justice, President Obama should expeditiously nominate, and senators confirm, strong judges for the court.
Tobias is the Williams Chair in Law, University of Richmond.