Appellate vacancies must be filled by Senate

Now that the 113th Senate has entered its third month, the upper chamber must immediately address the looming judicial cliff, which comprises 17 vacancies in 179 appellate judgeships. Until February 13, Minority Leader Mitch McConnell (R-Ky.) had maintained the June 2012 blockade which he imposed on all circuit nominees of President Barack Obama until after the November elections, ignoring pleas for post-election votes from Judiciary Committee Chairman Patrick Leahy (D-Vt.) and the nominees’ Republican and Democratic home state senators.

Three actions are necessary so judges can deliver justice. First, the Judiciary Committee must reapprove, and the full Senate confirm, First, Third, Tenth and Federal Circuit nominees William Kayatta, Patty Shwartz, Robert Bacharach and Richard Taranto. All four earned the best ABA rating and awaited floor votes since committee approval last spring. The panel did reapprove Shwartz on February 14 and the last three a week earlier, while the full Senate confirmed Kayatta on February 13 and Bacharach on February 25. Second, the Senate should expeditiously process D.C. Circuit nominees Caitlin Halligan, whom the committee approved on February 14, and Sri Srinivasan and Eleventh Circuit nominee Jill Pryor who received 2012 nomination and January 3 renomination with the first four nominees. The chamber should also promptly review Eighth Circuit nominee Jane Kelly and Tenth Circuit nominee Gregory Alan Phillips whom Obama tapped on January 31 and Federal Circuit nominees Raymond Chen and Todd Hughes who received February 7 nomination. Kelly had a February 27 hearing. Third, Obama must rapidly proffer, and the Senate quickly consider, nominees for the remaining nine vacancies.

Before nominations, Obama has robustly consulted both parties’ senators from states with empty seats. He tapped many exceptional uncontroversial nominees of balanced temperament, who are smart, ethical, industrious and independent. Leahy has swiftly arranged hearings and votes, moving nominees to the floor where most have languished. For instance, in December, the Senate confirmed 13 district judges, even though the chamber could easily have voted on 11 other nominees, including the four circuit possibilities, having panel approval. The Senate recessed without considering those excellent nominees, most of whom the committee reported with minimal opposition, because the GOP would not vote.

Republicans should cooperate better. The major bottleneck has been the floor. McConnell has rarely entered time accords for votes. Most problematic has been GOP refusal to vote on talented noncontroversial nominees, inaction that contravenes Senate traditions. When the Senate eventually voted, it overwhelmingly approved many nominees like John Dowdell, who captured appointment 95-0 in December.

The 17 appellate vacancies are critical because the 12 regional circuits and the Federal Circuit serve as courts of last resort for practically all appeals and resolve vital economic and social issues. Obama should continue cooperating with Leahy and Majority Leader Harry Reid (D-Nev.), who sets floor votes, and their GOP analogues to foster smooth action on the seven current nominees while proposing superb candidates for the ten vacancies lacking nominees.

In June, McConnell invoked the “Thurmond Rule,” blocking appellate nominee votes until the elections. Because Obama won and the Democrats increased their chamber majority over three months ago, Shwartz, Taranto and Halligan deserve speedy up or down Senate votes, which Taranto will finally have today. Shwartz received October 2011 nomination, enjoys strong bipartisan support of New Jersey’s Democratic senators and Republican Governor Chris Christie and has waited on a final vote since March 2012, while two experienced Third Circuit judges indicated last week that they will assume senior status this summer creating new vacancies. Letting Taranto languish concomitantly required that the Federal Circuit function with vacancies in 25 percent of its judgeships. Halligan is highly qualified and has waited more than two years for a yes or no vote, while the D.C. Circuit has vacancies in four of eleven judgeships. The Judiciary Committee has approved Shwartz, Taranto and Halligan, but Democrats and Republicans have yet to agree on final votes for Shwartz and Halligan. If GOP leaders fail to agree on timely final votes, Democrats must pursue cloture, as they did on Halligan Wednesday, and Republicans should join them. Despite Halligan’s prolonged wait and her stellar abilities, only one GOP senator favored cloture.

Because the 17 appellate openings undermine justice, President Obama must swiftly nominate, and senators expeditiously confirm, many fine judges.

Tobias is the Williams Chair in Law at the University of Richmond.

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