The federal bench now has 76 vacancies in 856 appellate and district judgeships. The 10th U.S. Circuit Court of Appeals experiences two in 12, one of which is an Oklahoma seat, and the Northern District of Oklahoma has one in three. These openings erode justice. President Barack Obama must swiftly nominate, and the Senate promptly confirm, judges to fill the vacancies.
Obama has robustly consulted Republicans, including Oklahoma Sens. Jim Inhofe and Tom Coburn, and Democrats where openings materialize before nominations. He has proposed nominees of balanced temperament, who are smart, ethical, diligent, independent and diverse vis-a-vis ethnicity, gender and ideology. Examples are 10th Circuit nominee Magistrate Judge Robert Bacharach and Northern District nominee John Dowdell, a respected Tulsa attorney.
Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, has expeditiously conducted hearings and votes, sending nominees to the floor where numbers languish for months. Indeed, on Aug. 3 the Senate recessed without considering 22 well-qualified nominees, including Bacharach and Dowdell, whom the panel approved because the GOP refused to vote.
Republicans must cooperate better. The principal bottleneck is the floor. Sen. Mitch McConnell, R-Ky., the minority leader, has infrequently agreed on ballots and used the unanimous consent procedure to stall many nominees. When the chamber has eventually voted, it has smoothly confirmed many nominees, like Stephanie Rose, who secured 89-1 approval on Sept. 10.
The Oklahoma 10th Circuit seat has remained empty since June 2010 when Robert Henry resigned to become Oklahoma City University president. Inhofe and Coburn recommended and strongly supported Magistrate Judge Bacharach, whom Obama nominated on Jan. 12, 2012. At a May hearing, Bacharach earned high praise for his command of constitutional and other issues he would confront on the appellate bench. The committee approved Bacharach on a June voice vote.
On June 13, Republican leaders invoked the “Thurmond Rule,” vowing to oppose all Obama circuit nominees until November. Thus, on July 30, Democrats petitioned for cloture on Bacharach but fell four short of the 60 votes required with the Oklahoma senators voting present, which is effectively no. Because the Senate recessed until November, Bacharach will not receive a vote until then.
The Northern District seat has been empty since January 2010 when Judge Terence Kern assumed senior status. In February, Obama nominated Dowdell who had a May hearing and received panel approval on June 7. Last week, an Inhofe staffer said Senate business makes it “highly unlikely that he will be confirmed before the November election.” Of course, the Senate could have approved Dowdell in a minute on a voice vote, had GOP leaders only agreed to vote. The chamber should quickly approve Dowdell because vacancies in a third of Northern District judgeships erode prompt, inexpensive and fair case resolution.
The vacancies in two Oklahoma judgeships undermine justice. Therefore, the Senate must rapidly vote on Bacharach and Dowdell when it returns in November.
Tobias is the Williams Chair in Law at the University of Richmond.