Now that the 112th Senate has reconvened for its lame duck session after President Barack Obama captured a second term and Democrats retained a Senate majority, this is an ideal moment to analyze the federal judicial vacancy crisis.
The bench now experiences 62 vacancies in the 679 district court judgeships. One is in the Western District of New York and has been vacant since March 2009 primarily because Republicans obstructed Mike Green, the highly-qualified nominee whom Obama nominated first. President Obama must promptly nominate and the Senate expeditiously confirm nominees so that judges can deliver justice.
Some critics blamed Obama for recommending insufficient nominees in 2009, but he subsequently quickened the pace. The White House has robustly pursued the advice of Republican and Democratic senators from jurisdictions where vacancies arose before official nominations. Obama has tapped noncontroversial individuals, who are intelligent, ethical, industrious and independent, possess balanced temperament and enhance diversity vis-á-vis ethnicity, gender and ideology.
The Senate Judiciary Committee has quickly scheduled hearings and votes, sending nominees to the floor where numbers have languished. For instance, on September 22, the Senate approved two nominees, even though it could felicitously have voted on 19 others, most of whom the panel had reported with minimal opposition. The Senate recessed without acting on any of those excellent nominees, because the GOP refused to vote on them.
Republicans should cooperate better. The GOP has automatically held over committee ballots for seven days without persuasive reasons. However, the major problem has been the chamber floor. Republicans have infrequently entered time accords for votes. The unanimous consent procedure, which the GOP employed in September, allows one senator to halt floor ballots. Most troubling has been Republican refusal to vote on uncontroversial talented nominees, inaction that contravenes Senate traditions. When senators have eventually voted, they overwhelmingly approved many nominees like John Dowdell whom they approved 95-0 Tuesday.
The 62 district vacancies are critical. Obama has nominated 31 very capable people. One is Monroe County Court Judge Frank Geraci, whom Obama tapped for the Western District of New York after the GOP blocked Mike Green. Obama nominated Judge Geraci on May 14. A substantial majority of the American Bar Association rated the nominee well-qualified. Geraci had a smooth June 27 committee hearing. The committee approved him with one no vote on July 19 and sent Geraci to the floor where he has since languished. Geraci merits quick consideration because the Western District needs all four of its judges to help resolve the substantial caseload, while Judge Charles Siragusa will assume senior status on December 15 creating a second vacancy. Obama must also speedily suggest candidates for the 31 openings lacking nominees. The chamber in turn must rapidly consider nominees.
The 62 district openings undermine the delivery of justice. Thus, President Obama must expeditiously nominate, and senators swiftly confirm, many fine judges.
ABOUT THE WRITER
Carl Tobias is the Williams Chair in Law at the University of Richmond.
McClatchy Newspapers did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of McClatchy Newspapers or its editors.