Carl Tobias

An Update on the Lingering Openings on the U.S. Court of Appeals for the Fourth Circuit

By CARL TOBIAS
Tuesday, January 26, 2010

When Barack Obama assumed the presidency, the U.S. Court of Appeals for the Fourth Circuit was experiencing openings in four of its fifteen judgeships – over 25 percent of its judicial contingent. And that situation had persisted since mid-2007. Accordingly, it was already critical, even in the early days of the Obama Administration, that the new President and the 111th Senate promptly fill those vacancies. When the federal appeals courts operate with such reduced numbers of judges, the situation frustrates speedy, economical and fair appellate resolution, no matter how conscientious the jurists who are on the bench may be.

Now, one year later, it's appropriate to ask: How are the chief executive and the Senate doing with respect to the Fourth Circuit? The answer is that they are doing better than last fall, but not well enough. The White House has adopted practices that should facilitate confirmation, yet the four vacancies remain. However, the prospects for improvement of the situation in 2010 seem rather promising. As I shall explain, the Senate's return from its holiday recess offers a useful perspective on the selection process.

Some Positive Developments Regarding Fourth Circuit Vacancies

The nominees who are pending before the Senate are excellent jurists. There is Virginia Supreme Court Justice Barbara Milano Keenan, whom the President has nominated for an empty seat in the Commonwealth. Moreover, there are North Carolina Court of Appeals Judge James Wynn and Superior Court Judge Albert Diaz, nominated for two openings there. Obama should also promptly nominate, and the Senate should swiftly confirm, an excellent nominee for the remaining unfilled Fourth Circuit position, which is in South Carolina.

Since this past fall, a few positive developments have occurred. In November 2009, after protracted machinations, the Senate approved for a judgeship on the Fourth Circuit U.S. District Judge Andre M. Davis, thus at last filling the Maryland position that had been unoccupied for nine years. This confirmation was particularly important because President Clinton had initially nominated Judge Davis for the opening in October 2000, a time that was too late, in a presidential election year, for his confirmation to occur.

Moreover, during mid-September of 2009,at the recommendation of Virginia Democratic Senators Jim Webb and Mark Warner, Obama nominated Justice Keenan, who had been a judge at all four levels of the Virginia bench, serving since 1991 on the state's Supreme Court. In early October, Keenan received a Judiciary Committee hearing at which Senator Jeff Sessions (R-Ala.), the ranking member, lauded the jurist as a "fine nominee." On October 29, the Judiciary panel approved Justice Keenan by voice vote.

In early November 2009, moreover, Obama nominated Judges Wynn and Diaz after consulting North Carolina Senators Kay Hagan (D) and Richard Burr (R). At a December 16 hearing, Hagan and Burr both testified, expressing strong support for the jurists. Senator Sessions extended an olive branch by agreeing to one hearing for the two nominees, which is atypical.

Unfortunately, however, this seeming thaw in the confirmation wars indicated by the actions of Senators Burr and Sessions proved short-lived. The following day, when Senator Ben Cardin (D-Md.) proposed Keenan's approval before the recess, Sessions analogized Democratic pleas for expeditious judicial confirmation to the child who kills his parents and then whines about being an orphan.

The committee promptly scheduled the North Carolina judges for a Thursday vote, but Republicans held the nominees over until next Thursday, when the panel should approve them. There is no reason to wait: Keenan, Diaz, and Wynn are strong nominees. Each has been shown to possess the intelligence, strong ethical sense, diligence, independence, and balanced temperament that are the ideal character traits for a judge. In addition, each earned the best ABA rating, well-qualified.

It's Time for the Senate to Move Forward on Judges Keenan, Wynn and Diaz – and for the President to Name Another Nominee

In sum, President Obama and the Senate have made progress toward restoring the Fourth Circuit to its full strength. Yet there is more to do. President Obama should also quickly consult home state lawmakers and submit an excellent nominee for the South Carolina opening that arose when Chief Judge Karen Williams unfortunately retired due to illness. Republican Senators Lindsey Graham and Jim DeMint should cooperate with elected Democratic officials, such as Representative Jim Clyburn, and suggest outstanding prospects for White House review.

Vacancies in 25 percent of the Fourth Circuit's seats may not capture headlines, but they present genuine difficulties for the administration of federal justice. The President and the second session of the 111th Senate should promptly fill those openings, as the tribunal needs all of its members to fulfill its potential of bringing litigants the process they are due.


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

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