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At its business meeting this morning, the Senate Judiciary Committee approved the nominations of Albert Diaz and James A. Wynn Jr., two North Carolina judges up for seats on the U.S. Court of Appeals for the 4th Circuit.
Diaz was approved unanimously, 19-0, while Wynn garnered one no vote, passing out 18-1. The bipartisan support in committee bodes well for their confirmation votes by the full senate, where candidates who were non-controversial in committee tend to be confirmed by wide margins.
But when will the senate take action? I put that question to University of Richmond law professor Carl Tobias, an expert on the judicial confirmation process.
Albert Diaz and James A. Wynn Jr., the two North Carolina judges nominated to the U.S. Court of Appeals for the 4th Circuit, have been held over by the Senate Judiciary Committee during today’s business meeting.
Both judges appeared before the committee on Dec. 16, when their home-state senators, Democrat Kay Hagan and Republican Richard Burr, both urged the committee to act quickly to confirm Wynn and Diaz and fill two of the four openings on the 15-seat 4th Circuit.
Burr and Hagan’s entreaties notwithstanding, holding over nominations for at least a week has become standard operating procedure for the judiciary committee, even for candidates with bipartisan support. So during today’s meeting, O. Rogeriee Thompson, a federal judge from Rhode Island who’s been nominated for the 1st Circuit, passed out of committee on a voice vote. Naturally, Thompson was held over at the previous business meeting on Dec. 17.
Two North Carolina judges who have been nominated for the U.S. Court of Appeals for the 4th Circuit are on the agenda for Thursday’s business meeting of the Senate Judiciary Committee. Albert Diaz (left) and James A. Wynn Jr. (right) fielded questions from committee members on Dec. 16, but the committee didn’t take up their nominations before the holiday recess. Now that Congress is back in session, Thursday marks the first opportunity for the committee to endorse Winn and Diaz to the full senate.
When they introduced Diaz and Wynn, both North Carolina senators, Republican Richard Burr and Democrat Kay Hagan, urged the committee to move quickly to fill the four vacancies on the 4th Circuit’s 15-seat panel. Given this bipartisan support (and that both judges received “unanimously well qualified” ratings from the American Bar Association), it will be interesting to see if the committee approves their nominations right away, or if they are held over for a week, which has been standard procedure for the judiciary committee.
Meanwhile, another nominee to the 4th Circuit, Virginia Supreme Court Justice Barbara Milano Keenan, passed out of committee on Oct. 29. While the latest edition of the senate’s executive calendar indicates that the full senate will vote Wednesday on Barbara Baldwin Martin, a U.S. District Judge from Atlanta nominated for the 11th Circuit Court of Appeals, there is no indication that Keenan’s nomination will get a vote anytime soon.
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.
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.
That’s how Sen. Arlen Specter (D-Pa.) sees it. Speaking Tuesday in support of Indiana U.S. District Judge David F. Hamilton‘s nomination to the U.S. Court of Appeals for the Seventh Circuit, Specter said:
Speaking candidly, perhaps bluntly, Judge Hamilton is a pawn in partisan political warfare. That is the long and short of it. This is the 90th filibuster in the past several months. This follows a pattern, regrettably, that goes back almost two decades, when both sides, Democrats and Republicans at various times, have engaged in filibusters against judicial nominees where there was no justification to do so. It occurred extensively during the Clinton administration. At that time, on the other side of the aisle, I supported many of President Clinton’s nominees. It occurred during the Bush administration, when I chaired the Judiciary Committee, and there were repeated filibusters by Democrats against President Bush’s nominees.
At that time, this Chamber was almost torn apart with the ferocity and intensity of the partisanship, with serious consideration being given to what was called the nuclear or constitutional option, when there was serious consideration given to altering the traditional requirement of 60 votes to end a filibuster. There was a tactic devised to challenge the ruling of the Chair, which could be overruled by or upheld by only 51 votes, and thereby move the judicial nominees without the traditional 60 votes. Fortunately, sanity and tradition prevailed and we worked out a compromise with the so-called Gang of 14 to confirm some and to reject others. Now we find the pattern continues.
It is my hope that at some point we can declare a truce, an armistice, and stop the partisan political warfare. The nomination of Judge Hamilton would be a good occasion to do that.
Well, there was no truce.
On Tuesday, Republicans tried unsuccessfully to filibuster Hamilton’s nomination, which prompted the Washington Post‘s Dana Milbank to observe: “When you’re in politics, a certain amount of hypocrisy comes with the job. Still, what happened on the Senate floor Tuesday stretched even the senatorial capacity to suspend shame to new levels of elasticity.”
And on Thursday, in a highly partisan vote, the Senate confirmed Hamilton by a 59-39 margin. The only Republican to vote for Hamilton was Sen. Richard Luger of Indiana, who, along with his Democratic colleague Evan Bayh, recommended Hamilton in the first place.