Carl Tobias

Filling the Three Openings on the U.S. Court of Appeals for the Second Circuit

By CARL TOBIAS
Wednesday, September 23, 2009

Recently, the nation focused its close attention on the Senate confirmation vote regarding U.S. Second Circuit Court of Appeals Judge Sonia Sotomayor. As is well-known, Sotomayor was President Barack Obama's first Supreme Court nominee and first judicial appointment. This focus was, of course, appropriate; the Supreme Court is the highest court in the land and resolves critical disputes over life, liberty, and property and Sotomayor's appointment was historic. Yet the importance of the federal courts of appeals, too, should not be underestimated. On the same day that the Sotomayor vote was taken, one of those courts – the U.S. Court of Appeals for the Second Circuit – saw its vacancy total rise for a different reason.

That day, Second Circuit Judge Robert Sack also assumed senior status, a form of semi-retirement -- thus joining his colleague Guido Calabresi, who had earlier taken senior status. These developments mean that the Second Circuit will now be operating with three of its thirteen authorized judgeships vacant.

The Second Circuit's functioning without almost a quarter of its judicial complement will complicate the prompt, economical and fair resolution of the appeals that come before it. Thus, now that the Senate has returned from its August recess, President Barack Obama should expeditiously nominate, and the Senate should promptly confirm, excellent judges for all three seats.

The Second Circuit's Busy, Important Docket – and the Genesis of Its Current Vacancies

Too many judgeship openings can undermine the delivery of justice by any federal appeals court. Moreover, Second Circuit openings are especially worrisome. The tribunal is the court of last resort for 99 percent of appeals pursued from Connecticut, New York and Vermont. The court decides more important business cases than any other among the 12 regional circuits, and it often resolves highly controversial questions relating to issues such as abortion, gun control and terrorism.

Currently, vacancies seem to be slowing the workings of this vital court. Among all the federal appellate tribunals, the Second Circuit ranked second to last in the time it took to conclude appeals by issuing an opinion – a valuable metric of the quality of appellate justice. Last month's loss of two active jurists will surely exacerbate the situation – and, troublingly in this recession, the vacancies will likely further delay the resolution of many appeals that are quite significant to the nation's economy.

A few reasons explain why the court currently lacks nearly 25 percent of its judges. To begin, Judge Chester Straub assumed senior status on July 16, 2008, and President George W. Bush nominated U.S. District Judge Loretta Preska on September 9 to take the open seat, after he minimally consulted with New York's Democratic Senators Charles Schumer and Hillary Clinton. However, that was too late in a presidential election year for confirmation, and the 110th Senate adjourned without granting the nominee a hearing.

Moreover, no one has been nominated to fill the Calabresi or Sack vacancies, even though each judge announced his intention to assume senior status this March. In fairness, however, Judge Calabresi actually took senior status in late July, while Judge Sack only went senior and Justice Sotomayor only received confirmation last month.

President Obama's Wise Practices Are Likely to Get These Key Vacancies Filled

Fortunately, President Obama has instituted a few practices that should facilitate expeditious appointments. First, he pursued bipartisanship to break the deleterious cycle of charges, recriminations and incessant paybacks.

Second, the White House has fostered consultation by soliciting guidance on candidates from Democratic and GOP Senate members, particularly home state senators, prior to actual nominations.

Obama has also tendered consensus nominees, each of whom possesses a balanced temperament and is very intelligent, ethical, industrious and independent. He has cooperated with Senator Patrick Leahy (D-Vt.), the Judiciary panel Chair, who arranges committee hearings and votes, Senator Harry Reid (D-Nev.), the Majority Leader, who schedules floor debates and votes, and their GOP analogues to expedite confirmations.

Illustrative of Obama's wise practices is his nomination of U.S. District Judge Gerard Lynch, who has rendered distinguished service on the U.S. District Court for the Southern District of New York since 2000. New York Democratic Senators Schumer and Kirsten Gillibrand promptly recommended the experienced trial judge to the President, who nominated him on April 2. By mid-May, the committee held Lynch's confirmation hearing, and on June 11, the panel approved Lynch. On Thursday, the Senate confirmed Lynch, voting in favor 94-3.

Senator Schumer's September 9 announcement that he had proposed District Judge Denny Chin to fill one Second Circuit seat is exactly the right step. The New York and Connecticut senators must continue to recommend superior candidates for the two other Second Circuit vacancies. The White House should expeditiously consider their suggestions and nominate excellent individuals to fill these spots – which are some of the most important judicial posts in the country. The Judiciary panel then must swiftly conduct hearings and votes, while the Majority Leader should promptly arrange floor debates and votes.

In sum, Judge Sotomayor's elevation to the Supreme Court, the semi-retirements of Judges Calabresi and Sack, and the Senate's recent confirmation ofJudge Lynch have now left three vacancies in the Second Circuit's thirteen judgeships – judgeships of special importance to the nation, especially in the midst of a recession.

President Obama should work closely with the Senate to rapidly fill the openings with superb judges, so that the Second Circuit can best deliver appellate justice, fulfilling its critical role.


Carl Tobias is the Williams Professor at the University of Richmond.

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