How the Bush Administration Is Thwarting Bipartisan Efforts to Nominate an Exceptional Jurist to the U.S. Court of Appeals for the Fourth Circuit

By CARL TOBIAS
Monday, Jan. 21, 2008
On Tuesday, when the second session of the 110th Senate convenes, those responsible for federal judicial selection should focus on a promising replacement for Judge J. Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit. (The Fourth Circuit has the final say on 99% of appeals from federal district courts located in Virginia, West Virginia, Maryland, North Carolina and South Carolina.)

In May 2006, Judge Luttig, a luminary of the conservative judicial establishment who made all the Supreme Court short lists, unexpectedly resigned. Now, more than a year-and-a-half later, President George W. Bush has nominated no one to fill this opening. Unfortunately, this omission is typical of the Bush Administration's judicial selection efforts. If the President fails to select a consensus nominee expeditiously, the next chief executive will fill this vacancy. It would be foolish for the President to wait, however, for superb candidates have bipartisan support.

Virginia's Senators Put Together An Excellent Set of Possible Nominees to Replace Judge Luttig

Fairly soon after Luttig departed the bench, Virginia Senators John Warner and George Allen began seeking candidates to succeed him. They quickly suggested a few prospects to President Bush. However, the White House neglected to nominate anyone prior to adjournment of the 109th Senate, which had a 55-45 GOP majority. Then, in the November 2006 elections, Jim Webb triumphed over Allen and the Democrats captured a Senate majority.

Once the 110th Senate assembled in January 2007, Senators Warner and Webb initiated a process that would soon recommend very competent candidates to the White House. The Senators promptly interviewed a dozen individuals suggested by a number of Virginia bar associations, and Warner and Webb cooperated in a bipartisan way to insure that Mr. Bush nominated an excellent Virginia attorney.

The people Warner and Webb evaluated are each highly qualified to serve on the Fourth Circuit. The candidates proposed are quite intelligent, diligent and independent, and they possess balanced judicial temperaments. As the Senators have explained, they "spent many hours reviewing potential nominees and conducting personal interviews." This "collaborative process" prompted them on June 12, 2007, to suggest "five candidates [whom they considered] eminently qualified": U.S. Western District of Virginia Judge Glen Conrad, Virginia Supreme Court Justices Steven Agee and Donald Lemons, University of Richmond Law Professor John Douglass, and practicing attorney Thomas Albro.



The Bush Administration Should Have Chosen One of the Candidates Suggested

The White House should have been open to this bipartisan, constructive work by Virginia's Senators, each of whom is a lawyer who appreciates the attributes individuals must possess to serve with distinction on the Fourth Circuit. Each Senator noted that he was "fully prepared to strongly support" and jointly suggest to the Judiciary Committee and the full Senate for confirmation any of the five nominees from whom Bush might have selected. This cooperation, which would have fostered a smooth approval process, is unusual because divisive partisanship has troubled appeals court appointments for years.

Notwithstanding the Senators' efforts, the Bush Administration submitted no nominee at all for Luttig's seat last year. Moreover, since Autumn 2007, rumors have circulated that President Bush will nominate an individual who was not one of the five persons whom the Senators recommended on June 12, 2007.

If so, this development would resemble what occurred regarding the September nomination for a second Fourth Circuit opening; the nominee, Richmond lawyer Duncan Getchell, was not among the five suggested. When the White House selected Getchell, Senator Warner remarked, "I steadfastly remain committed to the recommendations stated in my joint letter with Senator Webb to the president, and I have so advised in a respectful, consistent manner in my consultations with the White House." Senator Webb stated, "Despite our good faith, bipartisan effort to accommodate the President, the recommendations that Senator Warner and I made have been ignored. The White House talks about the spirit of bipartisanship, lamenting congressional obstructionism. The White House cannot expect to complain about the confirmation of federal judges when they proceed to act in this manner." Getchell's nomination did not advance in 2007, and he asked Bush to withdraw his name on Thursday.

A Larger Problem: The Bush Administration's Decision to Ignore Home-State Senators' Views Regarding Nominees for Federal Appellate Court Seats

Even worse, the Bush Administration's approach to federal judicial selection for Virginia Fourth Circuit openings is not at all peculiar to the Commonwealth. Indeed, the administration similarly failed to consult home-state senators and to nominate consensus candidates for a Rhode Island First Circuit vacancy, a New Jersey Third Circuit opening, a Maryland Fourth Circuit judgeship, and two Michigan Sixth Circuit seats.

In contrast, when the White House did consult and select consensus nominees, they were easily confirmed. Excellent examples include Third Circuit Judges Kent Jordan and Thomas Hardiman, Fifth Circuit Judge Jennifer Elrod and Seventh Circuit Judge John Tinder.

If the White House intends to fill the Luttig opening in 2008, when presidential election year politics will slow the judicial selection process, it should surely cooperate with Virginia's senators and propose a consensus nominee. The beginning point, moreover, should be the five highly-talented consensus candidates identified in the careful, bipartisan effort that Senators Warner and Webb undertook. If the Bush Administration fails to consider the five and ignores the Senators,President Bush will not fill Judge Luttig's vacancy at all, leaving that opportunity to the next administration.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.