Thursday, January 10, 2008
If he wanted, Bush could fill court vacancies
From the RoundTable blog
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Carl Tobias
Tobias is the Williams Professor of the School of Law at the University of Richmond. He lives in Richmond.
On May 10, 2006, Judge J. Michael Luttig, one of the brightest stars in the conservative judicial firmament, resigned his position on the U.S. Court of Appeals for the Fourth Circuit. Nineteen months later, President Bush has yet to nominate anyone for this vacancy. Unless the chief executive promptly selects a consensus nominee, the opening will continue until the next president assumes office.
Soon after Luttig's unexpected 2006 resignation, Virginia Republican Sens. John Warner and George Allen instituted a search for his successor. They promptly forwarded to the White House recommendations of several candidates. However, Bush selected no one before the 109th Senate, which had a 55-45 GOP majority, adjourned. Moreover, in the 2006 elections, James Webb defeated Allen and the Democrats secured a 51-49 Senate majority.
When the 110th Senate convened in January 2007, Warner and Webb expeditiously implemented efforts to suggest highly-qualified candidates for Bush's consideration. In the spring, the senators interviewed a dozen persons whom they asked several Virginia bar associations to evaluate and propose for the opening. Warner and Webb worked together in a bipartisan manner to guarantee that the president nominated an outstanding Virginia lawyer for the judgeship.
The individuals they assessed are well qualified for service on the tribunal, which is the court of last resort for 99 percent of appeals from Virginia, West Virginia, Maryland, North Carolina and South Carolina. The candidates suggested are very intelligent, diligent and independent and have balanced judicial temperament. The senators "spent many hours reviewing potential nominees and conducting personal interviews." This "collaborative process" led them in June to propose "five individuals [whom they deemed] eminently qualified": U.S. Western District of Virginia Judge Glen Conrad, Virginia Supreme Court Justices Steven Agee and Donald Lemons, University of Richmond Law Professor John Douglass and practicing attorney Thomas Albro.
Bush should have been receptive to the senators' bipartisan, constructive input. They are attorneys who understand the qualities that people must have to serve effectively on the court. Both were fully prepared to strongly support and jointly propose to the Judiciary Committee and the full Senate for approval any of the five Bush might have nominated. This cooperation, which would have facilitated confirmation, is rare as contentious partisanship has long plagued appellate selection.
Despite these concerted efforts, Bush neglected to nominate anyone throughout 2007. For several months, rumors have circulated that the White House intends to nominate someone who was not among the five candidates suggested on June 12. This action would mirror Bush's September nomination of Richmond attorney Duncan Getchell for another Fourth Circuit vacancy; Getchell also was not among the five. When Bush chose Getchell, Warner observed, "I steadfastly remain committed to the recommendations stated in my joint letter with Senator Webb to the president, and I have so advised in a respectful, consistent manner in my consultations with the White House senior staff."
Webb stated, "Despite our good faith, bipartisan effort to accommodate the president, the recommendations that Senator Warner and I made have been ignored. The White House talks about the spirit of bipartisanship, lamenting congressional obstructionism. The White House cannot expect to complain about the confirmation of federal judges when they proceed to act in this manner." Getchell's nomination did not progress in 2007.
If Bush hopes to fill the Luttig vacancy in 2008 when the presidential election slows judicial confirmations, he should work with Virginia's senators to find a consensus nominee. The place to start (and end) is the five highly-qualified consensus candidates designated in the careful, bipartisan approach that Warner and Webb employed. If Bush ignores the five and the senators, the next president will fill Luttig's seat.
