Carl Tobias

Confirming Circuit Judges in the 112th Senate

By CARL TOBIAS
Monday, August 1, 2011

When President Barack Obama was inaugurated, the United States Courts of Appeals experienced vacancies in fourteen of the 179 judgeships. Thus, it was critical that the administration promptly fill those openings. The White House has instituted many practices to facilitate appointments. However, numerous seats remain vacant and more have opened, as judges have retired or assumed senior status, so the total is presently nineteen. A trenchant example is the August 2009 Sixth Circuit nomination of Nashville practitioner Jane Branstetter Stranch. Because the empty appellate seats undermine the judiciary's expeditious, economical and fair disposition of appeals and Ms. Stranch had waited thirteen months for a floor vote, the Senate ultimately approved her last September. Now that the 112th Senate has concluded its first seven months and Obama has proffered nominees for ten of the appeals court openings, he must swiftly nominate excellent candidates for the remaining vacancies, while the upper chamber must expeditiously confirm the appellate nominees. Indeed, Senator Mitch McCornell (R-Ky.), the Minority Leader, should agree on a floor debate and vote for Sixth Circuit nominee Bernice Donald before the August recess because she is a well qualified, uncontroversial District Judge whom Obama nominated last December 1.

There are a few reasons for the empty judgeships. For instance, President George W. Bush ineffectively attempted to fill Sixth Circuit openings. He rarely consulted with senators from jurisdictions with vacancies or tapped consensus picks. Two Michigan Sixth Circuit posts lacked judges for a decade and were only filled when the parties reached a 2008 compromise.

Obama has invoked several measures to promptly fill all the current openings. He rapidly consulted home-state elected officials before actual nominations. Most officers have cooperated with the White House and promptly suggested candidates who are very smart, ethical, independent and diligent and have balanced temperament. The White House specifically consulted Tennessee Republican Senators Lamar Alexander and Bob Corker, who agreed to support Ms. Stranch. The President nominated the lawyer in August 2009, while the Judiciary Committee afforded her an October hearing at which the Tennessee senators appeared and voiced their support. The committee reported Stranch on a 15-4 vote in November 2009. The nominee then languished on the Senate floor for ten months.

Senator Patrick Leahy (D-Vt.), the Judiciary Committee Chair, worked on securing Ms. Stranch's Senate floor consideration. For instance, Leahy cooperated with Senator Alexander in requesting that Senator McConnell work with Senator Harry Reid (D-Nev.), the Majority Leader, to swiftly arrange the nominee's debate and vote. On July 20, 2010, Senators Leahy and Alexander worked together on the floor. Leahy lauded Ms. Stranch's capabilities, emphasized her protracted wait and sought unanimous consent to consider the nominee. Senator Alexander agreed that "Jane Stranch is a well-qualified nominee [and] is the longest pending circuit court nominee" and asked for a prompt vote. Senator McConnell stated that some Republicans voted against Ms. Stranch in committee and that he would attempt to have the Senate act on her soon. One week later, President Obama asked that McConnell cooperate in filling the "vacancies that continue to plague the judiciary" and seemingly alluded to Ms. Stranch when he observed that nominees have been "waiting up to eight months to be confirmed."

Obama meticulously picked Stranch as his first nominee for the Sixth Circuit, which includes Kentucky, Michigan, Ohio, and Tennessee, because she had assembled a stellar record as a Nashville attorney over three decades. The nominee earned the highest ABA ranking of well qualified from a minority of its committee and a rating of qualified from a substantial majority. Notwithstanding Stranch's excellent background, the chamber failed to hold her floor debate and vote before the Senate recessed last August. However, the chamber agreed to schedule a vote the day that the Senate returned. After brief debate, senators finally approved Stranch 71-21.

Openings in more than ten percent of the federal appellate judgeships show that President Obama must expeditiously proffer nominees for all nineteen vacancies and the Senate ought to swiftly confirm them. Jane Branstetter Stranch's experience demonstrates that there is no reason for delay. Senator McConnell must specifically agree to a floor vote for Judge Donald prior to the August recess because she has been waiting eight months. Quickly filling the empty posts is essential because the courts need all of their judges to deliver justice.


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

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