Carl Tobias

Confirming the Two North Carolina Nominees to the U.S. Court of Appeals for the Fourth Circuit

By CARL TOBIAS
Wednesday, June 30, 2010

When President Barack Obama took office, four of the fifteen judgeships on the U.S. Court of Appeals for the Fourth Circuit were vacant. Even then, it was imperative that the administration expeditiously fill these openings. Now, seventeen months later, the White House has instituted measures to facilitate judicial appointments, yet three of those Fourth Circuit vacancies remain. These openings impede the tribunal's ability to deliver justice.

On November 4, 2009, President Obama nominated two jurists to fill the Fourth Circuit vacancies: North Carolina Superior Court Judge Albert Diaz, and North Carolina Court of Appeals Judge James Wynn. Five months ago, the Senate Judiciary Committee overwhelmingly approved both nominees. Yet since then, both nominations have languished.

The Senate ought to immediately confirm Judges Diaz and Wynn. Both are excellent nominees who deserve enthusiastic votes in their favor. Their confirmations would significantly improve the Fourth Circuit's current troubling situation.

The Genesis of the Fourth Circuit Vacancies, and Why They Are Troubling

The Fourth Circuit is the court of last resort for 99 percent of the appeals from North Carolina, South Carolina, Virginia, West Virginia, and Maryland. As the numbers cited above show, the Circuit presently has openings in a full twenty percent of its judgeships. These unfilled seats can undermine the prompt, economical and equitable resolution of the cases that come before the Circuit.

For example, the Fourth Circuit presently provides litigants with the smallest percentages of oral arguments and published opinions, among all the federal circuit courts -- a statistic that is highly meaningful, because the percentages of oral arguments and published opinions are useful measures of appellate justice. Despite being short-staffed, the Fourth Circuit also decides cases at the quickest rate of all the federal circuit courts.

Several reasons explain why the Fourth Circuit currently has three empty positions. First, President George W. Bush did not apply efficacious measures to fill a number of openings. The Bush White House rarely consulted with senators from the states where the vacancies arose, or selected consensus nominees. Thus, at the Bush Administration's end, four judgeships on the Fourth Circuit were unfilled.

President Obama's procedures have been more bipartisan and inclusive. The ObamaWhite House has consulted home-state senators, regardless of their parties, before official nominations are made. Those Senators then have, in turn, worked with the Obama Administration to swiftly recommend candidates who possess the qualities that judges should have: These nominees are intelligent, ethical, independent and diligent, and have the balanced temperaments they need to fairly administer justice.

Regarding the Fourth Circuit openings, the Chief Executive consulted North Carolina Senators Kay Hagan (D) and Richard Burr (R), and they both supported Judges Diaz and Wynn. President Obama then nominated the judges, in early November 2009. Senator Jeff Sessions (R-Ala.), the Judiciary Committee's Ranking Member, agreed with the unusual practice of allotting just one hearing for these two appellate nominees, and that hearing was conducted in mid- December. The North Carolina senators attended and enthusiastically backed the jurists. Indeed, Senator Burr urged the panel to speed review, so that two vacancies might be filled. On January 28, the committee approved Judge Diaz 19-0, and Judge Wynn 18-1.

Judge Diaz and Wynn Deserve to Be Confirmed

President Obama carefully picked these two jurists, who had compiled fine records as judges in North Carolina courts and the military justice system. Both secured the best ABA ranking -- 'well qualified." With nominees like these, and bipartisan home-state Senator support, confirmation should be a no-brainer -- especially because the Fourth Circuit has operated with too many vacancies for far too long.

Now, the Senate ought to promptly set floor action for these two fine jurists. Senators Burr and Sessions should request that Senator Mitch McConnell (R-Ky.), the Minority Leader, work with Senator Harry Reid (D-Nev.), the Majority Leader, in swiftly arranging floor debates and votes for the nominees.

In April, Senator Hagan urged on the Senate floor that members confirm the jurists. She observed that 'partisan bickering has continually blocked qualified North Carolinians from confirmation," but noted that the President had nominated 'two highly qualified, experienced and fair minded North Carolina judges" in consultation with Burr and her. Senator Hagan is absolutely right.

In sum, the current vacancies in one-fifth of the fifteen Fourth Circuit judgeships should not be allowed to continue. The Senate ought to approve Judges Diaz and Wynn before the July 4 recess. Promptly filling these openings is crucial, because the court needs all of its judges to truly deliver justice that meets the high standards we apply to our federal courts.


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

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