JURIST Guest Columnist Carl Tobias of the University of Richmond School of Law says that in order for the US Court of Appeals for the Second Circuit to function properly, the Senate must confirm Judge Denny Chin as soon as possible after returning from recess, and President Obama should promptly nominate candidates for the other three vacancies on the court....
hen President Barack Obama assumed office, the U.S. Court of Appeals for the Second Circuit experienced a vacancy in one of the tribunal's 13 judgeships. Since then, the Senate has confirmed Judge Gerard Lynch for that opening. However, the chief executive has elevated Judge Sonia Sotomayor to the Supreme Court while three additional Second Circuit judges have assumed senior status. Thus, it is critical that the administration expeditiously fill these vacancies. The White House has adopted practices to facilitate appointments, but the four seats remain unoccupied.
An instructive example of this problem is Southern District of New York Judge Denny Chin's nomination to the Second Circuit. Because the four vacancies can undermine prompt, economical, and fair disposition of appeals, the Senate must swiftly approve Judge Chin while the President should expeditiously submit - and the upper chamber must promptly confirm - nominees for the three other empty judgeships. Indeed, the Senate ought to approve Judge Chin as soon as it reconvenes in January because the tribunal needs all of its members to deliver justice.
The Second Circuit is the final stop for 99 percent of appeals from Connecticut, New York, and Vermont. The court hears many significant business disputes, a number of which are important to United States economic recovery. The current vacancies in four of its 13 positions could impede speedy, inexpensive, and equitable appellate resolution. For example, the tribunal now requires more time to decide appeals than all but one of the 12 regional circuits.
Several reasons explain why the court lacks 30 percent of its members. Judge Chester Straub assumed senior status in July 2008, and President George W. Bush nominated Southern District of New York Judge Loretta Preska on September 9 of that year, but he consulted only minimally with New York's Democratic Senators Charles Schumer and Hillary Clinton. September was also too late in a presidential election year for confirmation, and the 110th Senate adjourned without considering the jurist. Moreover, Judge Chin is the only candidate whom the Obama White House has nominated for the existing vacancies.
President Obama has applied several techniques in order to expeditiously fill the current openings. He promptly consulted the home-state senators prior to actual nominations. Most senators have cooperated with the administration and swiftly proposed candidates who are very smart, ethical, independent, hard working and even-tempered. Obama specifically requested the guidance of New York Democratic Senators Schumer and Gillibrand who both strongly advocated Judge Chin. The chief executive nominated the jurist on October 6, while he received a November 18 Senate Judiciary Committee hearing at which both New York senators appeared and expressed their enthusiastic support. The Judiciary panel approved Chin on a December 10 voice vote.
The White House carefully selected Judge Chin because he had compiled an excellent record as a trial judge in the Southern District over the last decade and a half. Illustrative was Chin's expert handling of the Bernard Madoff criminal proceeding. The jurist earned the highest ABA rating of well qualified. Moreover, the two New York senators have lauded the nomination.
Given Chin's distinguished service, the Senate must promptly schedule him for a floor debate and vote. Senator Patrick Leahy (D-Vt.), the Judiciary Committee Chair, and Senator Jeff Sessions (R-Ala.), the ranking member, should work together on confirming the nominee. For instance, Senator Sessions could urge Senator Mitch McConnell (R-Ky.), the Minority Leader, to cooperate with Senator Harry Reid (D-Nev.), the Majority Leader, in swiftly arranging Judge Chin's floor consideration.
Carl Tobias is the Williams Professor at the University of Richmond School of Law.