Wednesday, March 25, 2009

Bipartisanship and Judicial Appointments


By Lisa Grafstein

President Obama will soon begin making nominations to the Fourth Circuit Court of Appeals as four of the 15 seats on that Court are currently vacant. Of the five states that make up the circuit (North Carolina, South Carolina, Virginia, West Virginia, Maryland) North Carolina has the fewest judges on the Court, even as the state has the largest population in the Circuit.

The sole North Carolinian on the Fourth Circuit – Judge Allyson Duncan -- was appointed by President George W. Bush in 2003. Conventional wisdom is that North Carolinians will be appointed to at least two of the open seats, although it would take all four seats to bring the state into relative parity in terms of population. Nevertheless, all seem to agree that we have been woefully under-represented for years.

Senator Kay Hagan has pledged to move nominations forward in a bipartisan way. Senate rules have permitted a Senator from a nominee’s home state to withhold a “blue slip” and thereby impede the nomination process for a particular nominee. She has argued that the era of partisan use of blue slips should end. Although there has long been political obstruction, Judge Duncan’s nomination in 2003 proceeded (and she was confirmed 93-0) during a Republican presidential administration when a Democratic Senator, John Edwards, was in office.

One significant question about the fate of additional North Carolinians on the Fourth Circuit is which route Senator Richard Burr will take – obstruction or bipartisanship? There is some cause to be hopeful. In May 2005, Senator Burr issued a press release calling for an up or down vote on judicial nominees:

“There is no doubt in my mind that I was sent here to work hard and to accomplish solutions to real problems…There is no doubt in my mind the task includes ensuring that the Senate provides judicial nominees an up-or-down vote. I remain hopeful still today that a resolution can be reached. Many of us have worked toward a fair process where all judicial nominees with majority support, regardless of party, receive an up-or-down vote.”

More recently, Senator Burr told the Charlotte Observer that he would like to see an end to the deadlock and is willing to work toward that end.

However, Republican Senators – including Senator Burr -- have sent a letter to President Obama stating that they will block nominees unless President Obama gets approval from Republican Senators in the nominees’ home states:

“Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee.”

Senate Republicans appear to suggest that they will reject nominees based not on any qualities of the nominees, but merely because the President fails to obtain pre-approval from them for his nominees. This is an astonishing attempt to hold the judicial nominations process hostage, and suggests that Senate Republicans’ objections will not be based on the perceived short-comings of any as-yet-unnamed nominees, but will derive from an effort to extort power in the nomination process itself. Given Senator Burr’s prior support of up or down votes, and his expressed desire to end the bickering over North Carolina judicial nominees, it is concerning that he signed on to the GOP demand.

The important process of nominating and confirming judges would be well-served by consultation with home state senators, and careful vetting of candidates’ qualifications by all parties. Wholesale rejection of nominees as a political tug of war will not serve the interests of our justice system. Senator Burr can, and should, help our state move past the politicization of appointments so that North Carolina can regain its rightful role in supplying quality judges to the Fourth Circuit.
Grafstein is a private practice attorney in Raleigh.
Copyright (C) 2009 by the North Carolina Editorial Forum. 3/09