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The Podium

Filling the First Circuit vacancy

It is past time for the Senate to vote on William Kayatta, the highly qualified consensus nominee whom President Barack Obama nominated for the Boston-based First Circuit last January. Because a vacancy in one of the court’s six active judgeships can prevent it from delivering justice and the opening has persisted for nearly a year, Republican Senators Scott Brown, Olympia Snowe, who all enthusiastically support Kayatta, must urge the Senate to expeditiously consider the superb nominee.

The First Circuit is the court of last resort for 99 percent of appeals from Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island. The circuit is the smallest, making one vacancy critical. Functioning without a sixth of the complement frustrates swift, economical and fair appellate disposition and places undue pressure on the remaining judges.

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Obama instituted efforts to swiftly fill the vacancy. He consulted Maine’s senators and Democratic Representatives Mike Michaud and Chellie Pingree, who created a selection committee, which recommended Kayatta and a second excellent candidate. Kayatta has compiled a long, stellar record at Portland’s Pierce Atwood firm, which earned him the highest ABA ranking — unanimously well qualified. The Judiciary Committee promptly conducted a March hearing, which Snowe and Collins attended to express strong support, and easily approved Kayatta in April. Senator Jeff Sessions (R-Ala.) opposed Kayatta because he was a member of the ABA Standing Committee on the Judiciary, which strongly rated Supreme Court nominee Elena Kagan. Senator Mike Lee (R-Utah) also voted no, as he had for every judicial nominee since Obama’s January recess appointment of several Executive Branch nominees.

In June, Senator Snowe observed: “Kayatta is superbly qualified and would be an outstanding” First Circuit addition; I have “strongly supported his nomination and will continue to work with the bipartisan Senate leadership” on floor consideration. Senator Collins agreed: “it simply isn’t fair that [election year politics slowed] Bill, who would be a superb judge. I have urged [all] my colleagues to give Bill the full Senate [vote] he deserves.”

Earlier that month, the Maine senators and Brown supplied three crucial GOP cloture votes that ended a filibuster and allowed confirmation of an Arizona Ninth Circuit nominee who enjoyed strong home state senator support. On June 13, before the Senate could vote on Kayatta, Republican leaders invoked the “Thurmond Rule” to deny all Obama circuit nominees votes until November. President Obama’s reelection and Democrats’ Senate retention have rendered the Thurmond Rule irrelevant.

On November 13, Collins wrote the Democratic and Republican leaders urging that they “move forward expeditiously to schedule votes on noncontroversial judicial nominees who have bipartisan support, in particular [Kayatta].” She elaborated: the “First Circuit bench is small so any single vacancy hits it disproportionately hard. Bill has a stellar record, the highest ABA rating, and the full support of Maine’s Republican delegation. There should be no reason to delay a Senate vote any further.”

Because the First Circuit needs all six active judges to operate effectively and Kayatta is an exceptional consensus nominee the Senate leadership must rapidly arrange Kayatta’s vote. If the leaders, nonetheless, reject a vote, Democrats must pursue cloture. Senators Brown, Snowe and Collins should firmly support cloture and encourage many Republicans to favor Kayatta’s cloture and merits votes. These GOP members include Senator Kelly Ayotte (N.H.), Arizona Senators John McCain and Jon Kyl and Oklahoma Senators Jim Inhofe and Tom Coburn, who enthusiastically support a Tenth Circuit Oklahoma nominee. Brown, Snowe and Collins voted for cloture on the Arizona senators’ nominee in June and the Oklahoma senators’ nominee in July.

A vacancy in one of six First Circuit judgeships means the Senate must swiftly confirm William Kayatta. Expeditious appointment is crucial because the court urgently requires all its judges to deliver justice.

Carl Tobia is the Williams Chair in Law at the University of Richmond.
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