Obama must pick judges fast

Carl Tobias

is a professor at the University of Richmond School of Law

One of the most significant assignments that the Constitution delegates to the president is the appointment of federal judges. One of the initial tasks that President Barack Obama should undertake in discharging this crucial responsibility is to fill the two vacancies on the 14-member U.S. Court of Appeals for the Third Circuit with outstanding jurists.

Of the remaining 11 regional circuits across the country, only the Fourth Circuit, with four openings, has more empty judgeships than the Third Circuit.

The two Third Circuit vacancies are critical, as they undermine the delivery of justice by the tribunal, which is the court of last resort for 99 percent of appeals that come from the Delaware, New Jersey, Pennsylvania and Virgin Islands district courts.

The Third Circuit also resolves questions about extremely controversial issues such as abortion, capital punishment, and freedom of religion. Among the appellate courts, the Third Circuit affords the second-lowest percentage of oral arguments and has the third-slowest disposition time, which are critical measures of appellate justice.

There are several reasons for the two vacancies on the Third Circuit. One is that Democrats have claimed President Bush tendered ideologically conservative nominees who were not consensus choices. They say he neglected to consult senators from the states in which vacancies arose before he submitted nominees.

Indeed, Shalom Stone, whom the president nominated to Justice Samuel Alito's vacated Third Circuit position, received only nominal consideration partly because of the White House's failure to consult New Jersey's Democratic senators, Frank Lautenberg and Robert Menendez, who opposed the nominee.

Republicans have asserted that Democrats did not expeditiously assess nominees or promptly schedule Judiciary Committee hearings and votes or Senate floor debates and votes.

In fact, the 110th Senate's Democratic majority accorded no hearings to Stone or Eastern District of Pennsylvania Judge Paul Diamond, the Bush nominee for Judge Franklin Van Antwerpen's Third Circuit judgeship.

President-elect Obama should adopt a number of procedures that will allow him to fill these empty seats quickly. First, the new chief executive should practice bipartisanship. Obama must remedy or ameliorate the cycle of pernicious charges and recriminations, divisive partisanship and continuous paybacks that have troubled judicial appointments.

Second, the new president ought to maximize consultation by soliciting guidance on candidates from Democratic and Republican senators, particularly home-state senators, before actual nominations. For example, the White House must seek advice from Pennsylvania's Bob Casey, a Democrat, and Arlen Specter, a Republican, before choosing someone for the Van Antwerpen opening.

The chief executive should propose consensus nominees, who are very smart, ethical, independent and industrious, and who possess balanced temperaments.

To expedite confirmation, the new administration must cooperate with Sen. Patrick Leahy (D., Vt.), the Judiciary Committee chairman, who arranges committee hearings and votes; Sen. Harry Reid (D., Nev.), the majority leader, who schedules floor debates and votes; and their Republican analogues.

Obama campaigned on a promise to restore bipartisanship. His new administration can fulfill this pledge with the expeditious appointment of excellent Third Circuit judges, and the court needs the two additional judges to help deliver appellate justice.