News Column

President Obama and the Bench

Nov. 9, 2012

Carl Tobias

One responsibility the Constitution assigns the president is the nomination of life-tenured federal judges. President Barack Obama ably discharged this duty by cooperating with Virginia Democratic Sens. Jim Webb and Mark Warner and nominating and confirming excellent jurists. All the Virginia judgeships are currently filled. Now that Obama has won re-election and Democrats have retained the Senate, Virginia provides a model for promptly filling the 83 lower court vacancies.

At Obama's inauguration, Virginia experienced one Fourth Circuit vacancy and one in the Eastern District of Virginia. The Eastern and Western districts each later encountered one more. When Obama assumed office, the new administration expeditiously invoked measures to fill openings. The White House worked closely with Webb and Warner. The senators requested that numerous Virginia bar groups swiftly evaluate applicants and make recommendations. Webb and Warner in turn rapidly suggested intelligent, ethical, independent and diligent candidates who have even temperaments.

In summer 2009, the senators proposed Virginia Supreme Court Justice Barbara Keenan for the Fourth Circuit opening. During September, Obama nominated Keenan because she had compiled an excellent record in the Virginia judiciary's four levels, serving on the Supreme Court since 1991. The jurist earned the highest American Bar Association rating, well qualified. In October, she received a Judiciary Committee hearing and won strong panel approval. Despite Keenan's distinguished service, Republicans would not agree to her floor debate and vote. Thus, Sen. Harry Reid, D- Nev., the majority leader, had to petition for cloture. The GOP ultimately relented, and Keenan received 99-0 cloture and merits votes on March 2, 2010.

Obama next attempted to fill one Eastern District vacancy created in May 2007 when District Judge Robert Payne assumed senior status after 15 years of dedicated service. Payne had announced his intentions much earlier to afford President George W. Bush ample time for naming his successor. However, Bush nominated David Novak, a well-regarded assistant U.S. attorney, on only Nov. 15, 2007, and senators never voted on Novak.

Webb and Warner again asked the bar entities to review candidates. The groups recommended three extremely qualified individuals, and the senators selected John Gibney, recommending him in September 2009 to Obama, who nominated Gibney on April14, 2010.

Gibney testified in an April hearing at which Sen. Jeff Sessions, R-Ala., the ranking member, praised his three decades of courtroom experience. The committee approved Gibney without dissent. He waited more than a half year before the Senate overwhelmingly confirmed him.

On Dec. 1, 2010, Obama nominated, and on Jan. 5, 2011, he renominated, Arenda Wright Allen, who has been an assistant U.S. attorney, for another Eastern District vacancy, and Magistrate Judge Michael Urbanski for a Western District opening. In May, the Senate confirmed Allen 96-0 and Urbanski 94- 0.

All four Obama appointees have acquitted themselves well on the federal bench. For example, Gibney resolved well Texas Gov. Rick Perry's challenge to his exclusion from the Virginia GOP presidential primary ballot, and Urbanski effectively handled the dispute over a Ten Commandments display in a Giles County school. The four appointees have proved to be mainstream judges.

Obama deserves credit for cooperating with Virginia's senators to seat well-qualified, consensus judges in the federal court vacancies. He realized much success, despite the obstruction that has attended selection nationally and for specific courts, phenomena witnessed in delayed confirmation of Keenan and Gibney. Obama and the Senate should now rely on the Virginia experience in promptly filling the many existing vacancies.

Tobias holds the Williams Chair in Law, University of Richmond.



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