JURIST Guest Columnist Carl Tobias of the University of Richmond School of Law says the January opening of the 110th Congress offers an opportunity for a fresh and perhaps more bipartisan start to a stalled federal judicial confirmation process…

When the 110th Congress convened, Congress was searching for ways to distinguish itself from the 109th, which was fairly criticized for doing nothing. President George W. Bush, for his part, was seeking tangible accomplishments to demonstrate that his administration retains vibrancy. Federal judicial selection is one prominent area in which bipartisanship could yield positive results. If Republicans and Democrats work constructively together, they could fill the federal bench.

Throughout the Bush Administration, partisanship and contention have plagued judicial appointments. When Congress assembled, there were 16 appellate, and 40 district, court vacancies out of 875 active lower court judgeships. The openings are critical because they prevent litigation's expeditious, inexpensive and fair resolution, imposing unnecessary costs on litigants and the public.

Several reasons can explain these vacancies. Some accuse Democrats of blocking nominees’ confirmation, despite the large 109th Senate Republican majority. Certain observers contend that many nominees were obstructed in the Judiciary Committee or were ignored on the Senate Calendar, so that the Committee and Senate leadership and the entire upper chamber were responsible. Others blamed the president for not submitting nominees or for continuing to renominate candidates the Senate clearly opposed. For example, Mr. Bush did not tender nominees for two 4th Circuit vacancies and renominated two candidates the Senate returned twice last year.

Numerous measures could facilitate filling the 56 present openings. After the elections, Mr. Bush promised to work closely with Democrats who captured a Senate majority, and he later warned that the electorate wants more bipartisanship in Washington, pledging to find common ground. Nonetheless, Mr. Bush’s lame duck renomination of five controversial nominees whom the Senate had returned on two occasions and granted no floor votes apparently conflicted with his bipartisanship calls.

Senator Patrick Leahy (D-Vt.), the new Chair of the Judiciary Committee, which exercises lead responsibility for the confirmation process, has indicated that Democrats would promptly confirm nominees who are smart, diligent and independent, have balanced judicial temperament and possess moderate legal and political views. Democrats will cooperate by expeditiously holding hearings and votes for the nominees and by scheduling Senate floor debates and votes.

Mr. Bush demonstrated that he wishes to confirm judges for all of the openings by taking several actions on Tuesday. The first and perhaps most important step was inaction by not renominating several controversial nominees. Second, the chief executive submitted to the Senate a package of five appellate court and 24 district court nominees, practically all of whom had been nominated when the Senate adjourned on December 9, 2006. The president may also want to consult Democrats by mentioning candidates who are under review prior to formal nominations while submitting nominees who possess the qualifications assessed earlier. If Republicans and Democrats follow these approaches, they can fill every vacancy.

Carl Tobias is the Williams Professor of Law at the University of Richmond

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