Sustained Outrage

4th Circuit update: Diaz and Wynn appear before Judiciary

In the whirlwind that led up to the holidays, I failed to take notice in this space of the Dec. 16 hearing before the Senate Judiciary Committee for two nominees to the U.S. Court of Appeals for the Fourth Circuit, Judges James A. Wynn Jr. and Albert Diaz, both of North Carolina.

Both nominees have the enthusiastic support of their home state’s senators, Republican Richard Burr and Democrat Kay Hagan. In their introductory remarks, Burr praised Wynn and Diaz as “two distinguished nominees,” while Hagan called them “exactly what we need on the 4th Circuit Court of Appeals.”

Burr and Hagan lamented the multiple vacancies on the 4th Circuit, and urged their colleagues to quickly confirm Diaz and Wynn. “I suggest that this committee look for an expedited review and referral to the full senate so that the deficiency on the 4th Circuit can be filled,” Burr said.

Hagan added:

There have been inexcusable vacancies on this court throughout history. And given that the U.S. Supreme Court only reviews one percent of the cases it receives, the 4th Circuit is the last stop for almost all federal cases in the region, and we must bring this court back to its full strength.

Since 1990 when this circuit was granted 15 seats, it has never had 15 active judges. But specifically, there has been a history of partisan bickering over the vacancies on the 4th Circuit. But with these nominees and this process, we are changing the course of history, and I am very excited about confirming these judges.

When he was elected, President Obama faced five openings on the 4th Circuit. Including Diaz and Wynn, he has nominated four jurists for the openings. The full senate confirmed U.S. District Judge Andre M. Davis on Nov. 9, and Virginia Supreme Court Justice Barbara Milano Keenan was unanimously approved by the Judiciary Committee on Oct. 29.

Senate Judiciary Committee member Ben Cardin, D-Md., urged the full Senate to confirm Keenan before it went into recess before Christmas, but that didn’t happen. Keenan’s timetable may have been affected by last year’s gubernatorial election in Virginia. If Keenan is not confirmed until after governor-elect Bob McDonnell’s inauguration on Jan. 16, which seems like a foregone conclusion with the Senate in recess, then a Republican will select her replacement instead of a Democrat.

University of Richmond law professor Carl Tobias, an expert on judicial nominations, urged swift action on nominees to the 4th Circuit in an op-ed piece published last week in the Richmond Times-Dispatch.

It is easy to see why the openings are critical. For two and a half years, the tribunal has essentially been operating without 25 percent of its judges, a vacancy rate that undermines the court’s ability to deliver justice.

Like Davis and Keenan, Wynn and Diaz “are very intelligent, ethical, diligent, and independent and possess even temperament, and they earned the highest ABA rating of well-qualified,” Tobias wrote.

At the jurists’ Dec. 16 hearing, Hagan and Burr appeared and voiced enthusiastic support for the judges. [Sen. Jeff Sessions, R-Ala., ranking member of the Senate Judiciary Committee] graciously agreed to one hearing for both nominees, which is unusual.

Regrettably, the apparent truce in the confirmation wars suggested by the cooperative actions of Sens. Burr and Session did not persist. The next day, when Sen. Ben Cardin (D-Md.) urged Keenan’s confirmation before the recess, Sessions likened Democratic calls for swift judicial confirmations to the child who complains about being an orphan after murdering his parents.

The U.S. Senate reconvenes on Jan. 19.