Filling the federal court vacancies

The midterm election results sealed President Barack Obama’s fate as the new political piñata. Observers across the political spectrum have criticized the president for many ills, real and imagined, which trouble the United States. Don’t like your health care provider? Blame Obama. Worried about the Middle East, ISIS, Iraq and Afghanistan? Blame Obama. Ebola keeping you awake at night? Blame Obama.

The criticism has even infected the arcane, but crucial, area of judicial selection. Republicans have pilloried the White House for slowly tendering nominees, progressives have excoriated the administration for proffering too many centrist submissions and conservatives have accused the chief executive for appointing jurists who could become liberal activists. Despite the criticism, Obama has actually enjoyed remarkable success in nominating and confirming very qualified mainstream candidates while shattering all records for diversity vis-à-vis ethnicity, gender and sexual preference. Because Republicans and Democrats agree that filling the 60 federal court vacancies with qualified consensus jurists is essential to delivering justice, they should promptly cooperate to propose and appoint excellent judges..

The president carefully instituted multiple productive actions to swiftly choose and concomitantly appoint excellent judges. Obama assiduously consulted home state elected officials, importuning politicians to expeditiously suggest talented aspirants who could augment diversity. Many implemented special endeavors to designate exceptional selections. The White House correspondingly pursued help from traditional sources, which included the ABA, and others less conventional, notably minority and women’s bar commissions and political officers, familiar with superb candidates. They afforded concrete names and profitable concepts while assisting most choices submitted to astutely navigate the prenomination system. Obama then effectively canvassed and nominated many candidates suggested.

Obama has improved confirmation procedures, thoroughly seeking aid from both parties. He engaged Senators Patrick Leahy (D-Vt.), the Judiciary Committee Chair, who schedules hearings and votes; Harry Reid (D-Nev.), the Majority Leader, who controls the floor, and Chuck Grassley (Iowa) and Mitch McConnell (Ky.) their GOP counterparts. Notwithstanding Democrats’ solicitous attempts, Republicans eschewed collaboration. For instance, numerous GOP senators delayed recommending selections and certain lawmakers even failed to muster any proposals. Leahy conducted hearings soon after nominations, yet the minority party held over ballots seven days without reasons for highly qualified submissions whom the committee unanimously approved the next week. McConnell cooperated little to promptly set final votes, and his party colleagues deployed anonymous or unsubstantiated holds for strong consensus nominees. This inactivity acutely complicated appointments, requiring Democrats to invoke cloture. The GOP aggressively secured a plethora of unnecessary Senate roll call ballots and precious upper chamber debate minutes. Accordingly, by fall 2009, the courts experienced some 100 vacancies, which remained near this level the ensuing half decade.

Mandating that all very competent nominees wait prolonged times stalls careers and dissuades prominent candidates from thinking about the bench. These restrictions deprive courts of judicial resources which they need, undermine speedy, economical and fair case disposition and erode public regard for the confirmation system and the coequal branches.

Concerted White House initiatives to fill the bench and sustained efforts of politicians in cooperating with the administration yielded resounding success. For example, the appeal courts now have only seven vacancies, the fewest since 1990, while the district courts have 54. As Senator Orrin Hatch (R-Utah), the Judiciary Committee Chair in President Bill Clinton’s administration, fondly said: “60 vacancies is full employment” for the bench. Obama has also realized great success in diversifying the courts with excellent, mainstream jurists. For instance, he appointed nine more LGBT judges than his predecessors. Moreover, Obama surpassed the total number of Asian American jurists confirmed over U.S. history. The President also seated two female justices, and women comprise 42 percent of his appointees.

These efforts have supplied many benefits. Filling the numerous openings has facilitated prompt, inexpensive and fair case resolution. Accomplished people of color, women and LGBT judges concomitantly enhance the understanding and resolution of core questions, such as criminal law and discrimination, which courts hear, by helping colleagues appreciate complex, subtle issues. Minority, female and LGBT judges also confine ethnic, gender and related biases that can nullify justice.

Now that Republicans have captured a majority in the next Senate, members who value a smoothly functioning judiciary, should remember that President Obama filled the many vacancies with well qualified moderate jurists who have improved the quality of federal justice. Assiduous collaboration in the lame duck session which opens this week and in the 114th Senate will build on Obama’s unheralded, but critical, success, which has substantially improved the federal courts.

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