There’s an old aphorism, repeated to me recently by a learned hand in West Virginia politics, that when you win a presidential election, you should immediately start taking over the government.
Some observers, as noted by the Washington Post‘s Michael A. Fletcher, are beginning to wonder when President Obama is going to focus more attention on the 96 vacancies in the federal judiciary. As of Oct. 18, Obama has forwarded 23 nominations for federal district and appeals court judgeships to the Senate for consideration. By comparison, Fletcher wrote, President George W. Bush submitted 95 names over the same period following his election.
To be fair, the Obama administration (unlike its predecessor) has had to contend with an opening on the U.S. Supreme Court, and may be preparing for the possibility of one or two more in the relatively near future, given the speculation surrounding Associate Justice John Paul Steven’s retirement and the apparent precariousness of Associate Justice Ruth Bader Ginsburg’s health. These high-profile appointments may have pushed other judicial nominations to the back burner.
What does this mean for West Virginia? The Mountain State currently has two open seats on the federal bench, one each in the Northern and Southern Districts. Kanawha Circuit Judge Irene C. Berger’s nomination to the opening created when U.S. District Judge David A. Faber took senior status at the end of last year made it out of the Senate Judiciary Committee on Oct. 1. She is now awaiting endorsement by the entire Senate.
The Northern District has been shorthanded since U.S. District Judge W. Craig Broadwater died unexpectedly in December 2006. Charleston attorney Herschel “Ned” Rose II, who had been recommended by West Virginia’s two senators, Robert C. Byrd and Jay Rockefeller IV, withdrew his name from consideration before Obama had a chance to nominate him for the opening in the Eastern Panhandle.
Byrd and Rockefeller have yet to put forward another name for the Northern District opening.
Berger’s nomination has a trickle-down effect, because her appointment would create an opening in Kanawha County, one of the busiest (and most visible) courts in West Virginia. Gov. Joe Manchin has accepted applications and named a committee to consider possible replacements, but has remained tight-lipped as he considers whom to appoint.
On the appellate level, the U.S. Court of Appeals for the 4th Circuit, which includes West Virginia, has five vacancies (none of which is likely to be filled by a West Virginia jurist). Obama has nominated two candidates, U.S. District Judge Andre M. Davis of Maryland and Virginia Supreme Court Justice Barbara M. Keenan. The Judiciary Committee approved Davis on June 4, and Keenan, who appeared at a hearing on Oct. 7, has yet to pass out of committee.
I’ve also heard grumbling from some Democrats that the candidates nominated by Obama for lifetime appointments are older than those by his Republican predecessor. Berger and Keenan are both 59; Davis is 60. By comparison, Thomas E. Johnston, a Bush II nominee, was not yet 40 when he was confirmed for a seat on the bench in the Southern District of West Virginia in 2006. George W. Bush’s three successful nominees to the 4th Circuit (Judge Dennis Shedd of South Carolina; Judge Allyson Kay Duncan of North Carolina; and Judge G. Steven Agee of Virginia) were 49, 51 and 55, respectively, when they were confirmed.