Empty Seats on the Bench
Realistic nominations might get them filled.

Sunday, October 21, 2007

NEXT WEEK, the full U.S. Court of Appeals for the 4th Circuit is scheduled to hear al-Marri v. Wright, an important case involving the rights of those captured in the war on terrorism to challenge their detentions. Under normal circumstances, the full court, which reviews federal cases from Maryland, Virginia, West Virginia and the Carolinas, would have a complement of 15 judges. These are not normal times.

The court is operating with only 10 judges. Two of the vacancies are considered "judicial emergencies," meaning the seats have been unoccupied for more than 18 months.

The Bush administration is almost entirely to blame. For starters, the White House has been exceedingly slow in making nominations for the five vacancies; it made one selection in July and two in September. Making matters worse, President Bush unwisely ignored the bipartisan recommendations of Virginia Sens. John W. Warner (R) and James Webb (D). After interviewing roughly a dozen people and getting input from several Virginia bar associations, the senators forwarded to the White House the names of five candidates, including Virginia Supreme Court Justice and former Republican state lawmaker G. Steven Agee and Judge Glen E. Conrad, whom Mr. Bush nominated to the U.S. District Court for the Western District of Virginia in 2003. Mr. Bush instead tapped Virginia lawyer E. Duncan Getchell Jr., who has no judicial experience. This was a mistake. The opinions of home-state senators are critical to a nominee's confirmation chances, and neither senator has embraced the nomination, meaning it will stall and the seat will remain unfilled.

Mr. Bush can still redeem himself. There are two remaining vacancies -- one a Virginia seat, the other a Maryland slot -- for which he has not forwarded a nomination. Out of courtesy and political pragmatism, Mr. Bush should seek the views of Maryland Democratic Sens. Barbara A. Mikulski and Benjamin L. Cardin, although consensus between the president and the liberal Marylanders is highly unlikely.

The president does, however, have a realistic chance of filling the second Virginia seat. He should seriously consider those on the Warner-Webb list and should act quickly.