Wyoming Tenth Circuit Judge Terrence OBrien recently assumed senior status after 11 years of valuable service. His decision left the federal bench with 16 vacancies in 179 active appeals court judgeships and the Tenth Circuit with three in 12. Only one active Tenth Circuit judge has represented Kansas on the court for over two years. Because these openings can erode the delivery of justice, President Barack Obama must expeditiously suggest, and senators promptly consider, nominees to fill the empty judgeships.
By CARL TOBIAS
Special to The Star
President Obama has assiduously pursued the advice and support of Republicans and Democrats where openings arose before nominations. He submitted nominees of even temperament, who are smart, ethical, diligent and independent. A valuable example is Tenth Circuit Judge Scott Matheson.
Sen. Patrick Leahy, Vermont Democrat, the Judiciary Committee chair, has swiftly arranged hearings and votes, sending nominees to the floor where a number languished for months. Republicans need to cooperate more. Republican Leader Mitch McConnell of Kentucky has rarely agreed on votes. Most troubling has been GOP reluctance to consider outstanding consensus nominees, inaction that violates Senate traditions.
When senators have voted, they felicitously confirmed most nominees like Eighth Circuit Judge Jane Kelly, who received a 96-0 appointment last week.
The 16 present appellate vacancies are critical because the circuits are tribunals of last resort in 99 percent of cases. Obama has tendered eight excellent nominees. He should continue cooperating with Leahy and Democratic Leader Harry Reid of Nevada, who sets floor votes, and their Republican counterparts to facilitate processing while nominating strong candidates for the 10 remaining unfilled seats.
Especially important is the Tenth Circuit opening that materialized when Judge Deanell Tacha resigned from her Kansas position in January 2011. Obama cooperated with the Wyoming senators to nominate Wyoming Attorney General Gregory Phillips for Judge OBriens seat, and the Senate will probably confirm Phillips in June, while the president worked closely with the Utah senators to nominate Utah Court of Appeals Judge Carolyn McHugh last week for the vacancy created when Utah Tenth Circuit Judge Michael Murphy took senior status on December 31, 2012.
For his part, the president must speedily nominate well qualified candidates for the vacancies. Obama did promptly nominate Steve Six, who earned a unanimously well-qualified ABA ranking, to Judge Tachas opening in March 2011. Mr. Six competently answered probing questions during his May hearing. Nevertheless, Kansas Republican Senators Pat Roberts and Jerry Moran chose to oppose Six before the panel could vote, and his nomination subsequently expired.
Thus, the chief executive must quickly solicit the Kansas senators guidance and support, perhaps asking that Roberts and Moran recommend a few candidates whom they find superior. The White House should then rapidly scrutinize the individuals proposed and nominate a superb prospect. The Judiciary Committee must correspondingly afford the nominee a rapid hearing at which the Kansas lawmakers state why they support the nominee, and a committee vote. After the nominee reaches the floor, McConnell should expeditiously agree to an up or down vote.
Because openings in 16 appellate judgeships and a quarter of Tenth Circuit posts can slow the delivery of justice, President Obama must swiftly nominate, and the Senate rapidly consider, talented nominees for the circuit vacancies.
Carl Tobias is the Williams Chair in Law at the University of Richmond.