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Wednesday, September 16, 2009

Judicial Nominations: Time for a Change of Pace?

Well, the August recess is over, Congress is back in town and as we move into the last quarter of the year, it seemed like a good time to get a sense of the lay of the land when it comes to judicial nominations.

Just two days ago, the White House named Virginia State Supreme Court Justice Barbara Milano Keegan to a seat on the Fourth Circuit; she joins Judge Andre Davis of Baltimore as a nominee to that court. There are currently five vacancies on the Fourth Circuit; the bench, once a bastion of ultra-conservative jurisprudence, is now evenly-divided between Democrat and Republican appointees, particularly as a result of somewhat-unexpected departures of high-profile conservative judges like Michael Luttig, now general counsel at Boeing, and Chief Judge Karen Williams, who resigned just a few months ago for health reasons. An ideological shift on the Fourth Circuit could mean major and positive changes in not just civil rights and criminal cases, among other issues dealt with by courts around the country, but in issues relating to executive power and national security; the Fourth Circuit has jurisdiction over many cases relating to the Pentagon, CIA and terrorism policies.

The Fourth Circuit isn’t the only federal appeals court poised for a change: the Third Circuit is also evenly split. President Obama has named Joseph Greenaway and Thomas Vanaskie to fill the two vacancies on that court. (For more information on vacancies and nominees, please see our handy-dandy Federal Circuit Court Vacancies Chart.

Despite tapping the aforementioned nominees, as well as David Hamilton (Seventh Circuit), Gerard Lynch (Second Circuit), Beverly Martin (Eleventh Circuit) and Jane Stranch (Sixth Circuit), there are still 13 circuit court seats awaiting a nominee, as well as 63 district court seats (the president has named nine district court nominees; there are 72 total vacancies).

AFJ has prepared a fact sheet examining the pace of President Obama’s judicial nominations in comparison to President George W. Bush’s at the same time in his presidency. Currently, the disparity between the two is 68% to 38% on court of appeals nominees and 37% to 13% on district court nominees.

Clearly, numbers do not tell the whole story. The president and the Congress are confronting a number of critical issues, the economy and health care among them; they also had a Supreme Court confirmation to handle. However, the numbers can and should serve as a reminder that judicial nominations are also extremely important. Given that the decisions made by the men and women of the federal judiciary affect millions of Americans every day on issues ranging from civil and workers’ rights to environmental and consumer protections and a host of other topics, judicial nominations should not go by the wayside. A president’s nominees to the federal bench are, in many ways, his longest-lasting legacy. Justice John Paul Stevens has sat on the bench for more than 30 years and seven presidencies; Judge Manuel Real was nominated by President Johnson in 1966 and is still an active judge more than 40 years and nine presidencies later.

We’ve said it before and we’ll say it again: judges matter. As we move into the fall and winter of 2009, we urge the White House and the Senate to nominate and confirm highly qualified nominees who will uphold our core constitutional values.

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