Two vacancies can erode the delivery of justice by the court, which is the tribunal of last resort for 99 percent of appeals pursued from Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. The court resolves many significant matters that involve public lands and Native Americans and decides very controversial questions relating to issues such as abortion and natural resources.
A few reasons explain why the tribunal lacks 17 percent of its judges. Judge Michael McConnell of Utah unexpectedly resigned in August 2009, and President Obama nominated Matheson in March 2010. Moreover, Chief Judge Robert Henry unexpectedly resigned in June 2010 to assume the presidency of Oklahoma City University. The president has nominated no one for Henry's vacancy.
President Obama has adopted several measures which should facilitate prompt appointments. First, he practiced bipartisanship to break the vicious cycle of accusations, countercharges and incessant paybacks. Second, the administration has consulted by seeking advice from Democratic and GOP elected officials, especially home state senators, before official nominations.
For example, the White House consulted with Sen. Orrin Hatch, R-Utah, who voiced strong support for Matheson, a former Democratic candidate for Utah's governorship. Obama has also proffered consensus nominees who have even temperament and are very smart, ethical, industrious and independent. He has cooperated with Sen. Patrick Leahy, D-Vt., the judiciary chairman, who schedules committee hearings and votes; Sen. Harry Reid, D-Nev., the majority leader, who arranges floor debates and votes; and their GOP counterparts to expedite confirmations.
However, the Senate has failed to vote on nominee Matheson, who received a May hearing at which Hatch voiced enthusiastic support for Matheson, who won unanimous approval from the Judiciary Committee in June. The Senate has not held Matheson's floor vote, and Obama has yet to nominate anyone for the Henry vacancy.
The two appeals court vacancies can prevent expeditious, inexpensive and fair appellate resolution. Thus, Sen. Reid must promptly arrange a floor debate and vote, and join with Republican Sens. Hatch and Bob Bennett in urging that Senate Minority Leader Mitch McConnell of Kentucky cooperate in agreeing to floor action.
In order for the court to best deliver appellate justice, the 111th Senate must conduct floor debate and vote on Matheson before it adjourns. The White House then must nominate someone to the Henry vacancy when the 112th Senate convenes.
Carl Tobias is the Williams Professor at the University of Richmond School of Law in Virginia.