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Baffling vacancy on federal bench

The Baltimore Sun

Next week, when federal judicial selection resumes, participants in the process could learn much from efforts to fill Judge J. Michael Luttig's vacancy on the 4th U.S. Circuit Court of Appeals.

On May 10, 2006, Judge Luttig, one of the brightest stars in the conservative judicial firmament and who was on every Supreme Court short list, resigned from the 4th Circuit, which includes Maryland. Nineteen months later, President Bush has yet to nominate anyone for this vacancy - a failure to act that typifies the Bush administration's selection process.

Mr. Bush's inaction is baffling because, as he is well aware, unless he promptly taps a consensus nominee, the opening will continue until 2009. Does he really want to leave this important decision to his successor?

Soon after Judge Luttig's unexpected resignation, Virginia Sen. John W. Warner and then-Sen. George Allen, both Republicans, began searching for his successor. They promptly recommended several candidates to the White House. However, Mr. Bush selected no one before adjournment of the 109th Senate, which had a 55-45 Republican majority. In the 2006 elections, Democrat Jim Webb defeated Mr. Allen, securing a 51-49 Senate majority for the Democrats.

When the 110th Senate convened in January 2007, Sens. Warner and Webb worked together to present Mr. Bush with highly qualified candidates to fill two open 4th Circuit seats, including Judge Luttig's. They expeditiously interviewed a dozen candidates whom they asked several Virginia bar associations to evaluate and propose. The senators worked in a bipartisan manner to assist the president in nominating an outstanding Virginia lawyer (the seat Judge Luttig vacated has traditionally been held by a Virginian).

The individuals they assessed are well qualified for service on the tribunal, which is the "court of last resort" for 99 percent of appeals from Virginia, West Virginia, Maryland, North Carolina and South Carolina. The candidates they suggested are very intelligent, diligent and independent, and have a balanced judicial temperament. They are: U.S. Western District of Virginia Judge Glen E. Conrad; Virginia Supreme Court Justices G. Steven Agee and Donald W. Lemons; John Douglass, my colleague at the University of Richmond Law School; and practicing attorney Thomas Albro.

Mr. Bush should have been receptive to the senators' bipartisan, constructive input. Sens. Webb and Warner are attorneys who understand the qualities necessary to serve effectively on the court, and both were "fully prepared to strongly support" and jointly propose to the Judiciary Committee and the full Senate any of the five whom Mr. Bush might have nominated. This kind of cooperation, which would have facilitated confirmation, is rare, as contentious partisanship has long plagued the selection of appeals court judges.

Despite these concerted efforts, Mr. Bush neglected to nominate anyone in 2007. For several months, rumors have circulated that the White House intends to nominate someone who was not among the five candidates suggested on June 12, 2007. This action would mirror Mr. Bush's September nomination for another 4th Circuit vacancy of Richmond attorney E. Duncan Getchell, who also was not one of the five.

When Mr. Bush chose Mr. Getchell, Senator Warner observed, "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 senior staff."

Senator Webb stated: "Despite our good faith, bipartisan effort to accommodate the president, the recommendations that Senator Warner and I made have been ignored." Mr. Getchell's nomination did not progress in 2007.

We are now in an election year, when presidential campaigning slows the judicial confirmation process. If Mr. Bush hopes to fill the Luttig vacancy in 2008, he should work with Virginia's senators to find a consensus nominee. The place to start is the five highly qualified consensus candidates designated in the careful, bipartisan approach that Sens. Warner and Webb employed.

What is Mr. Bush waiting for?

Carl Tobias is the Williams professor at the University of Richmond School of Law. His e-mail is ctobias@richmond.edu.

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