Senate confirms Wynn but not Diaz

August 6, 2010 by Andrew Clevenger

Last night, after the Senate confirmed Elena Kagan to become an Associate Justice on the U.S. Supreme Court, it also approved four federal judges, including North Carolina Judge James A. Wynn Jr. to a seat on the U.S. Court of Appeals for the 4th Circuit.

Wynn’s confirmation means that 13 of the 15 seats on the 4th Circuit are now occupied, the highest number for the very busy appeals court in years. It also, the Greensboro News & Record rightly points out, gives North Carolina a much-deserved second judge on the court. North Carolina is the biggest state in the 4th Circuit’s jurisdiction (which also includes West Virginia, Maryland, South Carolina and Virginia), and has been under-represented since Judge James D. Phillips Jr. took senior status in 1994. In fact, Wynn will fill Phillips’ seat, which has been unoccupied for 16 years.

Yesterday’s confirmations, however, did not include North Carolina Judge Albert Diaz, who, like Wynn, was nominated for a seat on the 4th Circuit by President Obama on Nov. 4. Diaz and Wynn appeared on the same panel together before the Senate Judiciary Committee, and passed out of committee together on Jan. 28. Ironically, Wynn garnered one vote against him in committee, while Diaz was approved by a unanimous, 19-0 vote.

James Wynn and Albert Diaz are not a package deal, and their fates need not be tied together just because they have moved through the confirmation process at the same time. But it is hard to see the logic of confirming one and not the other without someone coming forward to raise a specific objection to Diaz’s qualifications.

Most likely, the lack of action on Diaz is meant to serve as a reminder from Republicans that they will continue to slow-walk President Obama’s nominees through the confirmation process. There are still 103 vacancies in the federal judiciary, and that number has hovered around 100 for months, even as nominees sit in the pipeline.

The lack of movement on Obama’s nominees is attracting notice. At the Center for American Progress, Ian Millhiser has charted the percentage of nominees confirmed going back to the Carter administration. Here’s what he found:

The steep drop off during President Obama’s term shouldn’t be attributed to the quality of his nominees, either. When Obama nominees do get a vote on the Senate floor, they are confirmed by overwhelming majorities (putting aside the Supreme Court nominees, who naturally draw more scrutiny and criticism). In fact, you have to go back 11 nominees, or all the way back to May 5, to find a candidate who even garnered a single vote against them. (Sen. Tom Coburn, R-Ok., cast the only vote against Nancy D. Freudenthal when she was confired as U.S. District Judge for Wyoming.) The last 10 confirmation votes have been unanimous.

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