The recent decision by 4th Circuit U.S. Court of Appeals Judge J. Michael Luttig to resign will create yet another vacancy on the appellate bench. Even before Judge Luttig announced his decision last week, the White House and the Senate had been moving at a snail’s pace filling these empty slots, which now account for more than 10 percent of all circuit court judgeships. Considering the high stakes, this laggard pace is incomprehensible.
To be sure, the Senate’s confirmation of two outstanding Supreme Court nominees (Chief Justice John Roberts Jr. and Associate Justice Samuel Alito Jr.) represented monumental achievements. However, far too many circuit-court vacancies have gone unattended over the past 11 months. For example, only two nominees have been confirmed (Susan Bieke Neilson to the 6th Circuit on Oct. 27, 2005, and Michael Chagares to the 3rd Circuit on April 4, 2006 — both unanimously) since the Senate approved six appellate court judges last spring. (Judge Neilson died in January.)
The current number of appellate-court vacancies (18) is now more than double the number of circuit-court confirmations (eight) that have occurred throughout the 109th Congress, which began more than 16 months ago. Given the scheduled recesses for Memorial Day, the summer and pre-election campaigning, time to confirm these judges during the 109th Congress is rapidly running out.
Eleven of the 18 vacancies have been officially declared to be “judicial emergencies” by the National Judicial Conference. Considering the recent withdrawal of Henry Saad, whose nomination to the 6th Circuit was not protected from a filibuster by last year’s pact signed by the “Gang of 14,” the White House has nominated candidates to fill only about half of those emergency vacancies. Altogether, there are nine circuit-court vacancies for which the White House has failed to nominate a replacement.
Meanwhile, several of the nominees who have been named appear to be in trouble. For example, the nomination of William Myers III to the 9th Circuit, like Mr. Saad’s, was not protected from a filibuster in the “Gang of 14” agreement, which also permits Democrats to claim “extraordinary circumstances” to justify other judicial filibusters. And there is reason to believe that the seven Democratic members of the “Gang of 14” would filibuster Terrence Boyle’s nomination to the 4th Circuit by claiming “extraordinary circumstances.”
In any event, adding the nine circuit-court vacancies for which the White House has yet to name a candidate to the three slots whose nominees could face a Democratic filibuster means that at least two-thirds of the 18 appellate-court vacancies are in real danger of remaining unfilled by the end of the 109th Congress.
While Senate Majority Leader Bill Frist expects a pre-Memorial Day vote on the D.C. Circuit Court nomination of Brett Kavanaugh, far too many circuit-court vacancies require much more action. For half of these crucial slots, of course, the Senate cannot perform its advice-and-consent constitutional duties until the president performs his by nominating circuit-court candidates.