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Posted at 3:37 PM ET, 09/ 3/2009

Judges Delayed, Justice Threatened

By editors

By Carl Tobias

At the moment Barack Obama was elected president, four of 15 judgeships stood open on the U.S. Court of Appeals for the 4th Circuit. As I said in a Local Opinions commentary I wrote shortly after the election, it was imperative that the new president fill those vacancies promptly.

So nine months later it’s fair to ask: How’s he doing?

The answer is mixed. Although Obama has taken steps that should facilitate the appointments, those four judgeships remain empty. And now, with the retirement of Chief Judge Karen Williams, a fifth one has been added. This week, in fact, marks the ninth year of the 4th Circuit vacancy that opened Aug. 31, 2000, upon the death of the revered Baltimore jurist Francis D. Murnaghan Jr.

It is not difficult to grasp why this matters so much: So many openings undermine the court’s ability to deliver justice, and nine years is a very long time. The Senate, therefore, must promptly confirm U.S. District Judge Andre M. Davis, Obama’s selection for the Murnaghan seat, while Obama should expeditiously name, and the Senate swiftly approve, nominees for the four remaining slots.

Several things explain why Maryland’s 4th Circuit seat has been empty so long. Murnaghan’s death came too late in a presidential election year for a quick confirmation, though Bill Clinton did nominate Davis that October. George W. Bush inefficaciously attempted to fill this judgeship after the change in administrations, first considering Peter D. Keisler, to whom Democratic Sens. Paul Sarbanes and Barbara Mikulski objected on the grounds that Keisler had not practiced law in Maryland. In 2003, Bush nominated Claude A. Allen, but Maryland’s senators opposed him because he had practiced law minimally and, again, not in Maryland. Allen’s nomination languished till he withdrew. In 2007, Bush nominated Rod J. Rosenstein, Maryland’s U.S. attorney, but Mikulski and Sen. Ben Cardin (D) said they wanted him to remain the state’s chief federal prosecutor. Similar machinations have plagued efforts to fill vacancies in Virginia and North and South Carolina.

To his credit, Obama has moved to fill the Murnaghan seat. He consulted with the Maryland senators before making an official nomination; they recommended Davis, who is intelligent, ethical and independent. Davis was nominated April 2, received an April 29 hearing and won Judiciary Committee approval by a 16-3 vote on June 4. All that’s left is confirmation.

Home-state lawmakers have considerable responsibility for the four other vacancies, all of which lack nominees. Democratic Sens. Jim Webb and Mark Warner have proposed Virginia Supreme Court Justice Barbara Milano Keenan for their state’s opening. Obama should swiftly evaluate that recommendation. Sen. Kay Hagan (D-N.C.) has named a screening commission, which has forwarded suggestions, and she will soon make recommendations for the North Carolina vacancy. No suggestions have been announced for the South Carolina openings created by Judge William Wilkins’s 2007 semiretirement or Williams’s departure, although she only stepped down on July 8.

It may not capture the public’s attention, but vacancies in one-third of the 4th Circuit’s judgeships are an urgent problem. It is critical that these seats be filled swiftly, as the court requires all of its members to effectively deliver appellate justice.

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

By editors  | September 3, 2009; 3:37 PM ET
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If it is that urgent, then two words, "recess appointment"

Posted by: ggreenbaum | September 5, 2009 6:40 PM | Report abuse

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