A Circuit the Next President Needs to Complete

Sunday, November 16, 2008

One of the most important tasks that the Constitution delegates to the president is the appointment of federal judges. One of the first assignments that Barack Obama should undertake in discharging this critical responsibility as president is to find excellent judges to fill the four openings on the 15-member U.S. Court of Appeals for the 4th Circuit.

None of the remaining 11 regional appeals courts across the nation has more than one vacancy except the 3rd Circuit in Philadelphia and the D.C. Circuit, which have two. The numerous 4th Circuit openings are crucial, because they erode the delivery of justice by the tribunal, which is the court of last resort for all but 1 percent of cases that arise from Virginia, West Virginia, Maryland, North Carolina and South Carolina. The 4th Circuit also resolves controversial questions relating to issues such as capital punishment, free speech and terrorism. Among the appeals courts, the 4th Circuit supplies the lowest percentages of published opinions and oral arguments, which are important measures of appellate justice.

Why are nearly a quarter of the 4th Circuit's judgeships vacant? Democrats have asserted that President Bush submitted ideologically conservative nominees who were not consensus picks and that he refused to consult senators, including Republicans, from the states where openings arose before he selected nominees. Indeed, the president nominated several candidates multiple times, even after GOP senators had clearly opposed the nominees. Republicans have contended that Democrats did not promptly investigate candidates whom the Bush administration nominated or expeditiously schedule Judiciary Committee hearings and votes or Senate floor debates and votes. In fact, the 110th Congress's Democratic Senate majority granted no hearings for the five Bush nominees to the four judgeships that are now empty, although the Senate promptly confirmed Judge Steven Agee, whom Virginia Sens. John Warner (R) and Jim Webb (D) recommended Bush nominate.

Obama should institute numerous measures that will enable him to fill these vacancies swiftly:

· The new president ought to practice bipartisanship. He must break the vicious cycle of accusations and countercharges, divisive partisanship and incessant paybacks.

· Obama should maximize consultation by seeking advice on candidates from Democrats and Republicans in the Senate, especially home-state senators, before formal nominations. The president ought to forward consensus nominees who are intelligent, ethical, independent and diligent and who have a balanced temperament. He must work closely with Sen. Patrick Leahy (D-Vt.), the Judiciary Committee chairman, who schedules panel hearings and votes; Majority Leader Harry Reid (D-Nev.), who arranges floor debates and votes; and their Republican counterparts to expedite the confirmation process.

Obama campaigned on a pledge to restore bipartisanship. His nascent administration can honor this vow with the prompt appointment of superior 4th Circuit judges, because the tribunal needs the four authorized members who can help deliver appellate justice.

-- Carl Tobias


The writer is the Williams Professor at the University of Richmond School of Law.

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