On Sunday, the federal courts will mark an important milestone when U.S. Circuit Judge Stanley Birch of the U.S. Court of Appeals for the 11th Circuit retires after two decades of dedicated service.
Judge Birch’s action means that the judiciary will have 101 openings out of the 858 appeals and district court judgeships.
These vacancies, which are about 12 percent of the positions, undercut the delivery of justice. When the Senate returns from its August recess, President Barack Obama should promptly nominate, and the Senate must expeditiously confirm, lower court judges, so that the bench will be at full strength.
Since the 1987 fight over Judge Robert Bork’s Supreme Court nomination, Democratic and Republican charges and countercharges as well as non-stop paybacks have plagued judicial appointments, mainly because of divided government.
Although Democrats now control the White House and the upper chamber, they should work closely with Republicans to halt or ameliorate this counterproductive cycle.
The 179 appeals court judgeships, 20 of which are vacant, are critical, as the 12 regional circuits are the courts of last resort in their regions for 99 percent of cases.
Crucial is the Second Circuit that has openings in three of 13 judgeships. President Obama has fully consulted by seeking guidance from Democratic and Republican home-state senators prior to actual nominations.
For example, Georgia Republican Sens. Saxby Chambliss and Johnny Isakson supported Northern District of Georgia Judge Beverly Martin for an 11th Circuit vacancy created when Judge Lanier Anderson assumed senior status shortly after Obama assumed office.
In June 2009, the president nominated Judge Martin, and the Senate confirmed the jurist 97-0 to the 11th Circuit in January.
Obama has selected 22 consensus appeals court nominees who possess even temperament and are intelligent, ethical, hard working and independent as well as diverse vis-à-vis ethnicity, gender and ideology.
The president should continue cooperating with Sen. Patrick Leahy, D-Vt., the Judiciary Committee chairman, who arranges hearings and votes, Sen. Harry Reid, D-Nev., the majority leader, who schedules floor debates and votes, and their Republican counterparts to facilitate appointment.
The Senate has approved 10 of the nominees, so it must expeditiously confirm the six waiting for floor votes and complete review of the other six.
The 679 district judgeships, 81 of which are open, are important because district judges conduct federal trials and determine the facts, while circuit courts uphold 80 percent of their determinations.
The chief executive typically defers more to home-state senators’ views because they are familiar with lawyers who have the requisite qualifications.
The Georgia senators supported Amy Totenberg, a well-regarded practitioner, whom Obama nominated in mid-March to the Northern District of Georgia. However, the Judiciary Committee has not conducted a hearing.
The president has yet to nominate anyone for three other Northern District vacancies. Four of 11 authorized judgeships remain open, which imposes pressure on the active judges.
Obama has nominated 63 very capable district court nominees across the country.
The Senate has approved 24, so the chamber must promptly confirm the 13 awaiting floor consideration and finish processing the remaining 26.
Carl Tobias is the Williams professor at the University of Richmond Law School.
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