Carl Tobias

Why Filling the 100 Lower Federal Court Vacancies Is a Key Priority

By CARL TOBIAS
Friday, January 8, 2010

This week, the federal courts marked a significant milestone when United States District Judge Terence Kern, of the Northern District of Oklahoma, assumed senior status after fifteen years of dedicated service. Judge Kern's semi-retirement means that, of 858 appellate and district court judgeships, a full 100 – over eleven percent -- stand vacant. (Of 179 appellate positions, nineteen are vacant; of 679 district court judgeships, eighty-one are vacant.)

These openings surely undermine the delivery of justice. When the 111th Senate's second session returns on January 20, President Obama should promptly nominate, and the Senate should expeditiously confirm, a set of new lower federal court judges -- thus enabling the federal judiciary to operate at full strength some time in the near future.

For the Vacancies to Be Filled, Democrats and Republicans Must Transcend Partisanship

Ever since the ugly 1987 battle over Judge Robert Bork's Supreme Court nomination, Democratic and Republican charges and countercharges, as well as non-stop paybacks, have plagued judicial appointments, mainly because of divided government. Now, although Democrats presently control both the White House and the upper chamber, they should still work closely with Republicans regarding federal court appointments, in order to halt or ameliorate this counterproductive cycle.

The 179 appellate judgeships are particularly critical, as the twelve regional circuits are the courts of last resort for ninety-nine percent of federal cases; the Supreme Court's docket includes only a very small fraction of federal appeals. Especially crucial are the Second Circuit, with openings in four of its thirteen judgeships and the Fourth Circuit, with vacancies in four of its fifteen judgeships.

Since he has taken office, President Obama's procedures regarding federal judgeships have been bipartisan, and have sought consensus. In particular, the President has sought guidance from Democratic andRepublican home-state senators regarding potential nomineesprior toactual nominations. (The chief executive typically defers more to home-state senators' views, than those of other senators, because home-state senators are most familiar with lawyers who have the requisite qualifications. Obama deserves praise for including and listening to the views of Republican – not just Democratic – home-state Senators.)

As a result, Obama has now selected twelve consensus nominees who possess even temperaments and have all the qualities one might want in a federal judge: Each is very intelligent, ethical, hard-working, and independent. Moreover, the set of nominees as a whole is diverse vis-à-vis ethnicity, gender and ideology.

The President should continue to cooperate with Senator Patrick Leahy (D-Vt.), the Judiciary Committee chair, who arranges hearings and votes; Senator Harry Reid (D-Nev.), the Majority Leader, who schedules floor debates and votes; and their Republican analogues in order to facilitate confirmations of the President's slate of nominees. The Senate approved three in 2009, but six still await floor votes, and three more still await complete review.

Meanwhile, the 679 federal district court judgeships, eighty-one of which are open, are also important; district judges conduct federal trials and determine the facts. Moreover, the federal circuit courts uphold 80 percent of their determinations – a statistic that reflects appellate court deference to district court fact-finding. Here, too, Obama's appointees – totaling nine – are well-qualified. Overall, Obama has nominated 21 very capable nominees. Thus, the Senate must promptly confirm the four awaiting floor consideration and finish processing the remaining eight.

Obama's Nominees Deserve to Be – and Should Be -- Confirmed

To say that the Senate has approved 12 judges, and Obama has nominated 33 individuals, thus far is not to criticize the President or the chamber. Appointing a new Supreme Court Justice before the October 2009 Supreme Court Term began was critical. And Justice Sonia Sotomayor's confirmation process consumed three months, during which, understandably, little additional judicial selection activity transpired. Previous administrations also left numerous complex problems, such as the deep, ongoing recession, the Guantanamo prison, and the Iraq and Afghanistan conflicts, which required much Executive and Senate energy and time during the earlier months of the Obama Administration.

Yet the vacancies in eleven percent of federal appellate and district court judgeships deserve attention, too. As long as they persist, they continue to erode swift, economical and fair case disposition. Thus, President Obama should expeditiously nominate, and senators should promptly confirm, many excellent judges. Every day that the vacancies persist constitutes a small but important sacrifice of federal justice.


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

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