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Carl Tobias: Move quickly to fill Circuit Court openings

  • Published Sunday, March 17, 2013, at 12 a.m.

Kansas has had only one active judge on the 10th U.S. Circuit Court of Appeals for more than two years. The Denver-based court had three vacancies until Feb. 25, when Judge Robert Bacharach won Senate approval.

Because such vacancies can undermine the delivery of justice, President Obama must swiftly proffer, and senators quickly consider, nominees to fill all 16 openings among the nation’s 179 active appellate judgeships.

Obama has aggressively pursued guidance and support of Republicans and Democrats where openings materialized before his nominations. He suggested nominees of balanced temperament who are intelligent, ethical and independent.

Sen. Patrick Leahy, D-Vt., the Senate Judiciary Committee chairman, has promptly scheduled panel hearings and votes, forwarding nominees to the floor where many languished. Republicans ought to cooperate better.

Senate Minority Leader Mitch McConnell, R-Ky., has infrequently agreed on votes. Most problematic has been GOP unwillingness to consider excellent consensus nominees, inaction that contravenes Senate customs.

When senators have voted, they easily approved most nominees.

The 16 current circuit openings are essential because the courts are tribunals of last resort in 99 percent of appeals. Obama has proposed six strong nominees. He should keep cooperating with Leahy and Senate Majority Leader Harry Reid, D-Nev., who arranges floor votes, and their Republican counterparts to facilitate review while nominating exceptional candidates for the 10 remaining openings.

Particularly significant are the 10th Circuit vacancies that arose when Judge Michael Murphy assumed senior status on Dec. 31 and Judge Deanell Tacha resigned from her Kansas seat in January 2011.

Obama swiftly nominated Steve Six, who received a unanimous “well-qualified” rating from the American Bar Association, to Tacha’s vacancy in March 2011. Six capably answered difficult questions in his May hearing. Nevertheless, Kansas GOP Sens. Pat Roberts and Jerry Moran decided to oppose Six before the committee could vote, and his nomination later expired.

Accordingly, the White House must rapidly seek the Kansas senators’ advice and support, perhaps recommending that Roberts and Moran suggest a few prospects they deem superb. The administration should then quickly review the people tendered and nominate a terrific candidate. The Senate Judiciary Committee must grant the nominee a speedy hearing, at which the Kansas senators explain why they support the nominee, and a panel vote. Once the nominee reaches the floor, McConnell should immediately agree to a “yes” or “no” vote.

Because vacancies in 9 percent of appellate judgeships and 17 percent of 10th Circuit slots can undermine the delivery of justice, Obama must speedily nominate, and the Senate expeditiously consider, strong nominees for the circuit openings.

Carl Tobias teaches law at the University of Richmond.

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