Filling the Tenth Circuit vacancies

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Senator Patrick LeahyPatrick LeahyOvernight Finance: McConnell offers 'clean' funding bill | Dems pan proposal | Flint aid, internet measure not included | More heat for Wells Fargo | New concerns on investor visas Dem senator won't back spending bill without visa reforms Top GOP chairmen investigating foreign visa program MORE (D-Vt.), the chairman of the Judiciary Committee, has expeditiously scheduled panel hearings and votes, forwarding nominees to the floor where many languished. For example, in early August, the Senate recessed without considering 22 excellent nominees whom the committee approved because the GOP would not vote.

Republicans must cooperate better. The essential bottleneck is the floor. Republican Leader Mitch McConnellMitch McConnellTrump slams Obama for ‘shameful’ 9/11 bill veto GOP chairman lobbies against overriding Obama on 9/11 bill Black Caucus demands Flint funding from GOP MORE (Ky.) has infrequently entered accords to vote. The unanimous consent procedure, which permits a lone senator to stop ballots, has delayed many nominees. Most problematic has been GOP unwillingness to consider excellent consensus nominees, inactivity that contravenes Senate customs. When senators have voted, they easily confirmed many nominees like Lorna Schofield, who earned 91-0 appointment in December.

The 18 circuit openings are essential because the courts are the tribunals of last resort in 99 percent of appeals. Obama has tapped eleven superb nominees. They include Magistrate Judge Robert Bacharach whom Obama recommended for a June 2010 Tenth Circuit vacancy.  He should keep cooperating with Leahy and Democratic Leader Harry ReidHarry ReidBlack Caucus demands Flint funding from GOP Report: Intelligence officials probing Trump adviser's ties to Russia White House preps agencies for possible shutdown MORE (Nev.), who arranges floor votes, and their Republican analogues to smooth evaluation while nominating strong candidates for the seven remaining openings. Two comprise Tenth Circuit vacancies that arose when Judge Murphy assumed senior status on December 31, 2012 and Judge Deanell Tacha resigned in January 2011.

In January 2012, Obama nominated Bacharach, who secured the best ABA rating: well qualified. During May, the panel accorded him a smooth hearing and on June 7, reported Bacharach by voice vote with Senator Mike LeeMike LeeTrump accepts Cruz endorsement after saying he wouldn't In reversal, Cruz endorses Trump The Hill's 12:30 Report MORE (R-Utah) voting no to protest Obama’s January Executive recess appointments. Six days later, Republican Leader McConnell invoked the “Thurmond Rule,” opposing every Obama appellate nominee until after the November elections. Notwithstanding Obama’s reelection and Democrats’ enhanced Senate majority and strong pleas for post-election votes on these nominees from Senator Leahy and the nominees’ Republican and Democratic home state senators, the GOP refused to vote and the 112th Senate adjourned on January 1 without considering the nominees, whose nominations expired. Therefore, on January 3, Obama renominated all seven nominees, including Judge Bacharach. Because the jurist is a highly qualified consensus nominee, the committee speedily reapproved him last Thursday and senators should grant Bacharach an immediate floor vote.

For its part, the administration must expeditiously nominate outstanding candidates for the Murphy and Tacha openings. Obama ought to swiftly pursue the advice and support of Utah Republican Senators Orrin HatchOrrin HatchInternet companies dominate tech lobbying Senate panel approves pension rescue for coal miners Overnight Tech: GOP says internet fight isn't over | EU chief defends Apple tax ruling | Feds roll out self-driving car guidelines | Netflix's China worries MORE and Lee and quickly nominate a fine prospect for Judge Murphy’s post. Obama did promptly nominate Steve Six, whom the ABA rated unanimously well qualified, to Judge Tacha’s Kansas seat in March 2011. Six ably fielded sharp questions at his May hearing. However, Kansas GOP Senators Pat RobertsPat RobertsSenate panel approves pension rescue for coal miners Congress set for Saudi showdown with Obama GOP pressures Kerry on Russia's use of Iranian airbase MORE and Jerry MoranJerry MoranSenate panel advances ticket bots crackdown Overnight Tech: GOP says internet fight isn't over | EU chief defends Apple tax ruling | Feds roll out self-driving car guidelines | Netflix's China worries GOP pressures Kerry on Russia's use of Iranian airbase MORE announced their opposition to Six before the panel could vote, and his nomination expired. Thus, Obama must expeditiously consult the Kansas senators and speedily nominate a strong candidate.      

Because openings in ten percent of circuit judgeships and in one quarter of Tenth Circuit positions can undermine justice, President Obama must rapidly nominate, and the Senate speedily consider, exceptional nominees for the appellate vacancies.

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