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Prof. Carl Tobias Op-Ed in The Daily Journal, July 27, 2010

On each of three days in June, the U.S. Senate unanimously confirmed three U.S. District Court Judges, including Josephine Staton Tucker and Lucy Koh to be U.S. District judges for the Central District of California and the Northern District of California respectively. The upper chamber confirmed without dissent nearly all of the nine nominees rather soon after President Barack Obama had carefully selected them. It was not surprising that the Senate confirmed the nine very competent nominees. What is unusual is that these were the only times that the upper chamber has approved more than a single Obama judicial nominee at one time across his whole year and a half tenure. Because there are now 98 vacancies out of 858 appellate and district court judgeships, which erode prompt, inexpensive and fair case resolution, the Senate must swiftly confirm the many present lower court nominees by reestablishing the longstanding tradition of confirming well-qualified, noncontroversial nominees soon after they receive Senate Judiciary Committee approval.

President Obama has instituted many efficacious practices to facilitate lower court selection. Perhaps most important, the chief executive has consulted with home-state senators before official nominations. For example, the President worked very closely with California Democratic Senators Dianne Feinstein and Barbara Boxer, who strongly recommended Judge Tucker and Judge Koh after merit selection commissions, which the California senators established, solicited applications and reviewed and interviewed numerous excellent candidates .

Once Judge Tucker and Judge Koh received FBI background checks, American Bar Association evaluations and rankings and White House assessments and interviews, President Obama nominated Judge Tucker in early February of this year and Judge Koh in late January. Judge Tucker and Judge Koh are very qualified. Both jurists were highly regarded for their service as Superior Court judges in Orange and Santa Clara counties. Each is very smart, ethical, independent,diligent and has a balanced judicial temperament.

Sen. Patrick Leahy, D-Vt., the Senate Judiciary Committee Chair, expedited panel consideration of the two nominees. Judge Tucker and Judge Koh received prompt February hearings in which the jurists enjoyed avid support from Senators Feinstein and Boxer, while the judges provided testimony that demonstrated their qualifications and which elicited nothing controversial about either jurist. Thus, in March, the Senate Judiciary Committee expeditiously approved the judges with no opposition and sent their names to the Senate floor.

Despite the nominees' excellent qualifications, strong home state support and overwhelming committee votes, Sen. Mitch McConnell, R-Ky., the minority leader, was only willing to enter into agreements for floor debates and votes in June. However, Judge Tucker and Judge Koh are not the only nominees who have languished on the Senate calendar. Indeed, there is a backlog of 21 appellate and district court nominees who are awaiting Senate floor action, 12 of whom the Judiciary Committee approved without a single negative vote. A number of the nominees have waited several months and one 6th Circuit nominee Jane Stranch, has been stalled for more than eight months.

The 179 appellate court judgeships, 20 of which are empty, are vital as the 12 regional circuits are the tribunals of last resort in their areas for 99 percent of the cases because the Supreme Court hears so few appeals. Most critical now is the 2nd U.S. Circuit Court of Appeals, headquartered in New York, which decides many important business disputes and has openings in three of 13 judgeships, and the 4th U.S. Circuit Court of Appeals, headquartered in Richmond, which addresses numerous terrorism and capital punishment appeals and has vacancies in three of 15 positions. The 9th U.S. Circuit Court of Appeals, which includes the western states, Hawaii, Guam and the Northern Mariana Islands, concomitantly experiences vacancies in four of its 29 judgeships; however, the court's numerous senior judges, many of whom carry large caseloads, help the tribunal resolve its enormous docket. President Obama has submitted 22 outstanding nominees, and he should keep cooperating with Sen. Leahy and Sen. Harry Reid, D-Nev., the majority leader, who schedules floor debates and votes, and their Republican counterparts to foster smooth confirmation. The Senate has approved nine nominees; thus, the chamber must promptly confirm the seven who have secured panel approval and are awaiting floor confirmation and finish review of the other six.

The 679 district court judgeships, 78 of which are vacant, are crucial because district court judges hold federal trials and ascertain the facts, while appellate courts sustain 80 percent of appeals from their determinations. Presidents ordinarily defer more to home-state elected officers when nominating district court candidates, as those officials are usually quite familiar with attorneys who have the requisite qualifications. Obama has nominated 62 highly competent individuals. The Senate has confirmed 21, so the upper chamber must swiftly approve the 16 waiting for floor action and conclude processing of the other 25.

Delays in scheduling floor votes and the 98 appellate and district court vacancies undermine swift, economical and fair case disposition. Thus, Republicans must stop slowing floor debates and votes by placing anonymous holds on nominees, while Sen. McConnell should agree to prompt floor votes. For their part, Democrats must schedule thorough debates for nominees whom Republicans deem controversial. Most important, now that the Senate has returned from its July 4 recess, the upper chamber must reinstitute the tradition of confirming multiple well qualified, uncontroversial nominees, as the body did last month.

Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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