December 11, 2012

Lag on Kayatta nomination calls for immediate Senate action

A crucial U.S. 1st Circuit slot remains open, and a highly qualified nominee from Maine is in limbo.

By CARL TOBIAS Special to the Press Herald

RICHMOND, Va. - It is past time for the Senate to vote on William Kayatta, the highly qualified consensus nominee whom President Obama nominated for the Maine 1st Circuit opening this 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, Maine Republican Sens. Olympia Snowe and Susan Collins, who enthusiastically support Kayatta, must urge the Senate to expeditiously consider the superb nominee.

The 1st 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.

President Obama instituted efforts to swiftly fill the vacancy. He consulted Maine's senators and Democratic Reps. 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 American Bar Association ranking -- unanimously well qualified.

The Judiciary Committee conducted a March hearing, which Snowe and Collins attended to express strong support, and easily approved Kayatta in April.

Sen. 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. Sen. Mike Lee, R-Utah, also voted no, as he had for every judicial nominee since Obama's recess appointment of several Executive Branch nominees.

In June, Sen. Snowe observed, "Kayatta is superbly qualified and would be an outstanding addition to the First Circuit Court of Appeals. I have strongly supported his nomination ... and will continue to work with the bipartisan Senate leadership" on floor consideration.

Sen. 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 Massachusetts Republican Sen. Scott Brown supplied crucial cloture votes that ended a filibuster and allowed the confirmation of an Arizona 9th Circuit nominee who enjoyed strong support from his state's U.S. senators.

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 re-election and Democrats' Senate retention have rendered the Thurmond Rule irrelevant.

On Nov. 13, Collins wrote 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 1st Circuit needs all six active judges to operate effectively and Kayatta is an exceptional nominee, the Senate leadership must rapidly arrange Kayatta's vote. If the leaders, nonetheless, reject a vote, Democrats must pursue cloture.

Sens. Snowe and Collins should firmly support cloture and encourage many Republicans to favor Kayatta's cloture and merits votes. These Republican members include Sen. Brown, New Hampshire Sen. Kelly Ayotte, Arizona Sens. John McCain and Jon Kyl and Oklahoma Sens. Jim Inhofe and Tom Coburn, who enthusiastically support a 10th Circuit Oklahoma nominee. Snowe, Collins and Brown voted for cloture on the Arizona senators' nominee in June and the Oklahoma senators' nominee in July.

A vacancy in one of six 1st 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 Tobias is the Williams Chair in Law at the University of Richmond.


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