Filling judicial vacancies in Nevada

Carl Tobias

Sunday, July 22, 2012 | 2:01 a.m.

This month, Judge Kent Dawson of the U.S. District Court for the District of Nevada takes senior status following a dozen years of valuable service. His action leaves the federal district court bench with 64 vacancies out of 679 judgeships and the Nevada District with two in seven. These openings — nearly 10 and 30 percent, respectively — undermine the delivery of justice. Therefore, President Barack Obama must swiftly nominate, and the Senate promptly confirm, district judges so that the judiciary will be at full strength systemwide and in Nevada.

The vacancies are crucial because district judges try federal cases, and their judgments are affirmed 80 percent of the time. Obama has thoroughly consulted elected officers, soliciting advice from Democratic and Republican home-state politicians before official nominations. He has tapped 154 nominees of balanced temperament, who are smart, ethical, diligent and independent as well as diverse in terms of ethnicity, gender and ideology.

Obama should keep working with Sen. Patrick Leahy, D-Vt., the Judiciary Committee chairman, who schedules hearings and votes; Senate Majority Leader Harry Reid, who sets chamber debates and votes; and their GOP counterparts to speed confirmation. Obama must rapidly nominate excellent prospects for the 37 seats without nominees. The Senate, which has confirmed 122 judges, should quickly review the 28 current nominees and any whom Obama proposes.

Reid has cooperated with Obama to recommend candidates for the District of Nevada. Early this year, Reid proposed Judge Elissa Cadish, an experienced Clark County District Court Judge whom the American Bar Association Standing Committee on the Judiciary found qualified. On Feb. 16, the president nominated Judge Cadish. However, Sen. Dean Heller, R-Nev., refused to return his “blue slip” because he could not “support a nominee whose commitment to the Constitution’s Second Amendment is in doubt.”

Heller based his opposition on Cadish’s answer to a 2008 judicial election campaign questionnaire. Reid asked Leahy to conduct a hearing for Cadish, but he refused out of respect for Senate traditions. Because Cadish clarified that her response accurately reflected the law’s unsettled state when made, Heller must return the blue slip or at least permit a hearing so Cadish may explain her views. The chamber should next swiftly process Cadish.

Reid must quickly recommend candidates for Dawson’s vacancy while Obama should expeditiously tap a nominee. The Judiciary Committee must then promptly schedule this nominee’s hearing and panel vote, and the Senate should set a floor debate and vote soon thereafter.

Several reasons support swiftly filling the two Nevada vacancies. First, the district’s judges have long carried substantial caseloads, propelled by Nevada’s enormous growth and recent economic problems. Second, vacancies in two of the district’s seven active judgeships can be critical, in sharp contrast, for example, to California’s Central District, which has 27 active judgeships. Operating without nearly a third of the judicial complement imposes unnecessary stress on the Nevada district’s other jurists and complicates prompt, inexpensive and fair case resolution. Third, judicial confirmations slow in a presidential election year, and this could further delay nominees’ appointment even into 2013.

Indeed, during June, Senate Minority Leader Mitch McConnell, R-Ky., announced his intention to prevent votes on all Obama appellate nominees until the November election. Sen. David Vitter, R-La., has similarly blocked a qualified Louisiana district nominee; Heller’s opposition to Judge Cadish had the same effect. These concerns are exacerbated because Nevada District Judge Larry Hicks will assume senior status on Dec. 13. Thus, the Senate must expeditiously review Cadish and the nominee for Dawson’s seat so the district will have a full contingent of judges.

The openings in almost a tenth of federal judgeships and in 28 percent of Nevada District posts erode justice. Accordingly, President Obama must quickly nominate, and senators rapidly approve, numerous fine judges.

Carl Tobias holds the Williams chair in law at the University of Richmond and was a founding faculty member of the Boyd Law School.