Tobias: Obama, Senate Need to Move Fast on Vacancies

Posted March 26, 2010 at 4:54pm

When Barack Obama was elected president, four of 15 judgeships stood vacant on the U.S. Court of Appeals for the 4th Circuit, which covers Maryland, Virginia, West Virginia and the Carolinas. Because these openings undermine expeditious, inexpensive and fair resolution, it was imperative that the new president swiftly fill the empty positions.

[IMGCAP(1)]So 16 months later, it’s fair to ask: How’s the chief executive doing? The answer is better than he was in September. Although Obama has instituted measures that should facilitate the appointments, three of those four judgeships remain empty. Nonetheless, the prospects for success in 2010 appear considerably more promising. Now that the 111th Senate’s second session has entered its third month, it is the perfect moment to canvass where judicial selection stands.

It is easy to see why the openings are critical. So many vacancies undermine the court’s ability to deliver justice, and the tribunal has essentially been operating without a quarter of its complement for two and a half years. The Senate, therefore, needed to promptly confirm Virginia Supreme Court Justice Barbara Milano Keenan for an opening there and must rapidly approve North Carolina Court of Appeals Judge James Wynn and Superior Court Judge Albert Diaz for two vacancies in that state. Moreover, Obama should expeditiously nominate, and the Senate swiftly approve, a nominee for the one remaining vacancy in South Carolina.

Since September, several positive developments have transpired. In November, after many machinations, the Senate confirmed U.S. District Judge Andre Davis 72-16 and finally filled the Maryland seat that had been open since 2000 when revered Baltimore jurist Francis Murnaghan died. On Oct. 29, the Judiciary Committee approved Justice Keenan by voice vote and sent the well-qualified, uncontroversial nominee to the floor. She had been awaiting a vote longer than any current appellate nominee on March 2 when the Senate at last confirmed her. On Nov. 4, Obama nominated Judges Wynn and Diaz after carefully consulting with North Carolina Sens. Kay Hagan (D) and Richard Burr (R). Wynn and Diaz are very intelligent, ethical, diligent and independent and possess an even temperament, while they earned the highest American Bar Association rating of well-qualified. At the judges’ Dec. 16 hearing, Hagan and Burr appeared and voiced enthusiastic support for the jurists. The panel quickly approved the judges on Jan. 28, and the chamber must expeditiously confirm them.

Obama should promptly tap an outstanding nominee for the South Carolina vacancy, which was created when Chief Judge Karen Williams unfortunately retired, by consulting home-state lawmakers. Republican Sens. Lindsey Graham and Jim DeMint must cooperate with elected Democratic leaders, such as Majority Whip James Clyburn, and recommend excellent candidates for the president’s consideration. Obama ought to swiftly assess those suggestions and nominate an outstanding prospect.

Vacancies in 20 percent of the 4th Circuit’s judgeships may not capture the public’s attention, but they are a serious problem. Obama and the 111th Senate have made progress on filling those openings. These seats must be filled expeditiously, as the court requires all of its members to effectively deliver appellate justice. Indeed, in early March, the Senate finally confirmed Justice Keenan after she had waited more than four months for a floor vote.

Carl Tobias is the Williams professor at the University of Richmond School of Law.