It is too early to conclude that the minority in the Senate will remain successful in keeping the brakes on the process.  Progress is important; as Carl Tobias points out, the federal judiciary is overly stocked with white men.  (Carl Tobias is Williams Professor at the University of Richmond School of Law.)  “Eighty-four percent of federal judges are white. Female jurists comprise 20%. African-Americans constitute 8%. Out of the almost 1,300 sitting federal judges, a mere 11 are Asian-American and only one is a Native American. A significant percentage of the 94 federal districts has never had a jurist who is a woman or a person of color.”

Two of the pending nominations are for the Fourth Circuit, which has been running shorthanded for years.  The glacial process impairs justice.  There are five openings on that court, one third of the fifteen judicial seats.  In the absence of judges, appellants cannot get the attention or promptness they deserve, and practitioners suffer because fewer opinions are polished for publication.

Judge Andre M. Davis of the United States District Court for the District of Maryland has been nominated for a second time (his died when the Senate failed to take action before President Clinton’s term ended).  Judge Davis has been a judge since 1987; the Fourth Circuit would be his fourth court.  On June 4, the Senate Judiciary Committee voted him qualified, and sent the nomination to the full Senate.  Now that Justice Sotomayor has been confirmed (two months now), the Senate should fill this seat, vacant for ten years now.

Judge Davis is well-regarded, and should easily obtain the needed votes, if the Senate just gets to it.  His record is not overly liberal; in fact, the National Council on Independent Living opposes Judge Davis’s elevation because of his record on ADA cases, strictly applying the definitions of disabled to deny coverage under that law.

President Obama has also nominated a Justice of the Supreme Court of Virginia, Barbara Milano Keenan. She recently had a hearing before the Committee.