Fifteen years ago this week, J. Dickson Phillips, a highly-regarded Fourth Circuit Judge, took senior status, a type of semi-retirement. The jurist had served with distinction for 16 years after President Jimmy Carter appointed Phillips, who was then the Dean at the University of North Carolina - Chapel Hill School of Law. The Senate has confirmed no one for this vacancy since Phillips became a senior judge on July 31, 1994. His opening is clearly the most prolonged in the entire nation. Because that empty seat leaves one North Carolina member of the court and erodes its delivery of justice, President Barack Obama must promptly appoint an excellent replacement for Judge Phillips.
Chief Judge Karen Williams’s unfortunate retirement due to illness means that there are now openings in five of 15 judgeships authorized for the Fourth Circuit, which is the court of last resort for all but one percent of cases from North Carolina, Maryland, South Carolina, Virginia and West Virginia. Having a third of the positions vacant is significant because the openings can impede justice’s delivery. Of the 12 regional circuits, the tribunal affords the smallest percentage of oral arguments and published opinions, which are valuable yardsticks of appellate justice. However, the court does resolve appeals most quickly.
A few reasons explain why Judge Phillips’s seat has been unfilled for a decade and a half. His summer 1994 departure was apparently too late in a mid - term election year for the Senate to approve a nominee, if President Bill Clinton had tapped someone. Indeed, Clinton did not forward James Beaty, a U.S. District Judge for the Middle District of North Carolina, until December 1995. However, the GOP Senate majority never seriously evaluated Beaty partly due to opposition from Senator Jesse Helms (R-N.C.). Clinton then nominated James Wynn, a Judge of the North Carolina Court of Appeals, in August 1999, but the Senate failed to vote on him.
President George W. Bush’s selection method also explains the lengthy opening. In 2001, he nominated Terrence Boyle, a U.S. District Judge for the Eastern District of North Carolina, whom Bush’s father had nominated a decade earlier. However, Senate Democrats, particularly John Edwards (D-N.C.), blocked Boyle mainly as payback for GOP opposition to Clinton nominees. Bush nominated Boyle on several occasions, even though numerous senators opposed him. Once Democrats regained Senate control in 2007, Bush nominated Robert Conrad, a U.S. District Judge for the Western District of North Carolina. However, he never received a hearing.
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President Obama has attempted to promptly fill the Phillips seat by soliciting input on candidates from North Carolina’s Senators, Kay Hagan (D) and Robert Burr (R), prior to official nomination. The Senate members agreed to cooperate and end the logjam. Hagan created a panel, chaired by former North Carolina Supreme Court Chief Justice Burley Miller, to vet candidates and recommend excellent prospects. The panel has given Hagan suggestions, but conspicuously absent from her July 10 White House recommendations for U.S. District Judges, Attorneys, and Marshalls were any Fourth Circuit suggestions. Thus, Hagan must expeditiously forward recommendations for the court, so the White House may promptly nominate. Obama in turn must swiftly consider the proposals and select a consensus nominee, who has even temperament and is very intelligent, industrious, ethical, and independent.
The absence of a nominee is not a criticism of Obama or Hagan. The White House has been preoccupied with the worst economic situation since the Great Depression, the conflicts in Iraq and Afghanistan and filling a Supreme Court vacancy. Hagan is a new senator, who is wrestling with these problems and other complications and has numerous recommendations to make. She and Senator Burr may also disagree about the best nominee for this vacancy.
President Obama must swiftly appoint a superior replacement to assume Judge Phillips’s protracted Fourth Circuit opening because North Carolina must have greater representation on the court, which needs all of its judges to deliver appellate justice.
Carl Tobias is the Williams Professor at the University of Richmond School of Law.