Now that President Obama has been reelected and Democrats have retained a Senate majority, he must swiftly nominate, and the upper chamber expeditiously approve, judicial nominees, especially for the four Florida vacancies, so that the courts can deliver justice.
On Thursday, senators confirmed 94-0 Circuit Judge Mark Walker for the Northern District of Florida. However, the Judiciary Committee delayed action on Circuit Judge Brian Davis for the Middle District three times until the June 21 meeting when the panel reported Davis 10-7. The committee also only held a September hearing for Magistrate Judge Sherri Polster Chappell, whom President Barack Obama nominated to the Middle District in June and finally approved her on Thursday.
Moreover, the bench experiences 64 vacancies in the 679 district judgeships. These openings erode speedy, economical and fair case resolution.
Observers criticized Obama for nominating too slowly in 2009, but he has since picked up the pace. The chief executive assiduously consulted Republican and Democratic senators from states where vacancies occurred before nominations. He has suggested noncontroversial nominees of balanced temperament, who are intelligent, ethical, industrious, independent and diverse vis-á-vis ethnicity, gender and ideology.
Senator Patrick Leahy, the Vermont Democrat who chairs the Judiciary Committee, has rapidly set hearings and votes, sending nominees to the floor where many have languished. For instance, the Senate recessed September 22 without considering 19 excellent nominees; most enjoyed strong committee votes.
Republicans should cooperate better. The major problem has been the Senate floor. Sen. Mitch McConnell of Kentucky, the Republican Minority Leader, has rarely agreed to ballots, invoking unanimous consent, which allows one senator to halt votes. Especially troubling has been Republican refusal to vote on qualified consensus nominees, inaction that contravenes Senate custom. When senators have cast ballots, they overwhelmingly confirmed most nominees.
The 64 district vacancies are crucial. The Middle and Southern District each experience two. Obama has nominated 33 highly competent prospects nationwide. The President nominated Judge Davis and Judge Walker during February and Judge Chappell in June. Obama must quickly propose candidates for the 31 openings without nominees.
Senators approved Judge Walker because he is well qualified. The chamber failed to consider the other similarly qualified Florida nominee, Judge Davis, before recessing in September but must vote on him in the lame duck session that began November 13. The committee reported Judge Davis in June 10-7 with Senator Lindsey Graham, R-S.C., not voting. Senator John Cornyn, R-Texas, voted against. He “had a concern about some intemperate language that dates back to 1995 in what otherwise appears to be an unblemished record” and would “keep an open mind.”
Judge Davis was held over thrice at the request of Sen. Charles Grassley, R-Iowa, the ranking member, who appeared concerned about Davis’ answers in the May hearing and to later written questions. On June 21, Grassley voiced concern about Davis’ perspectives respecting a few issues, particularly implicating race, and voted No. Now that the committee has reported Judge Chappell, the Senate must quickly consider her, while the chamber should expeditiously process Circuit Judge William Thomas, whom Obama nominated for one Southern District vacancy November 14.
The administration should keep closely conferring with Florida Senators Bill Nelson and Marco Rubio, who expressed strong support for Walker, Davis, Chappell and Thomas, and soon propose a fine nominee for the Southern District opening created November 16 when Judge Patricia Seitz assumed senior status. The Senate, for its part, must speedily process that nominee.
The 64 vacancies undermine the delivery of justice. Accordingly, President Obama must swiftly nominate, and senators promptly approve, numerous excellent judges now that senators have reconvened for their lame duck session.
Carl Tobias is the Williams Chair in Law at the University of Richmond.