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Now that the U.S. Senate has reassembled, it must swiftly appoint President Biden’s exceptional nominee Bradley Garcia to the U.S. Court of Appeals for the D.C. Circuit. The court is the nation’s second most important tribunal, because it decides massive appeals that challenge administrative regulations, which protect public health, safety, and welfare and can be very costly to implement. Garcia, whom Biden nominated on June 15, 2022, would afford considerable valuable expertise and would become the court’s first Latino judge. The nominee has excelled in law’s upper echelons for nearly a dozen years, while he recently became a leader in the prestigious Department of Justice (DOJ), Office of Legal Counsel (OLC), assuming the crucial role of Deputy Assistant Attorney General. The seat that Garcia would fill has been open for plentiful months. Accordingly, the chamber must expeditiously appoint the well qualified, mainstream nominee.
This critical vacancy arose in June 2022, when D.C. Circuit Judge Judith Rogers gave notice that she would assume the post of senior jurist on Sept. 1 after more than two decades of dedicated public service on the court. Rogers had carefully notified Biden earlier that she was becoming a senior jurist.
White House Counsel Dana Remus relied on a systematic process to recommend able, moderate candidates for Biden’s scrutiny. The team duly collected numerous able, mainstream choices they had reviewed for this tribunal’s previous empty seats and other talented, moderate candidates. The office promptly considered, interviewed, and suggested a few exceptionally qualified people, namely Garcia.
When Biden duly tendered Garcia, the press release examined the nominee’s compelling professional qualifications. The White House stated that, before extraordinary OLC service, the nominee was an O’Melveny & Myers partner in the Supreme Court and Appellate Practice Group, working at the respected firm for eight years. The nominee had represented plentiful clients in almost 50 federal and state court appeals, effectively arguing 13 complicated appeals in the Supreme Court and in practically half the appellate courts. He competently served as a law clerk for Justice Elena Kagan and for D.C. Circuit Judge Thomas Griffith.
Garcia constitutes an intelligent, ethical, careful and diverse nominee vis-à-vis ethnicity, with measured temperament. He earned a well qualified rating, which is the best from the ABA Standing Committee on Federal Judiciary. Garcia displayed these qualities when testifying in a July 27 Judiciary Committee hearing, while Democratic members appeared satisfied with his thorough, careful answers. However, some GOP senators pressed Garcia about his supposed limited experience, youth, and pro bono representation in litigation over abortion, gun control, and other “culture war” issues. For instance, Republicans asserted he resembled D.C. Circuit member Justin Walker, former President Donald Trump’s similarly young D.C. Circuit nominee whom they claimed Democrats had criticized over his youth. Sen. Ted Cruz (R-Texas) disdainfully stated “looking over your clients, it’s actually impressive just how much of a left-wing advocate you’ve been.”
During a Sept. 15 meeting, the panel rigorously discussed Garcia’s attributes and reported him on a 12-10 vote, because he comprises a highly talented centrist. Senators’ views reflected ideas they articulated in the hearing. For example, Sen. Chuck Grassley (R-Iowa), the panel ranking member, asserted Garcia would confront “trouble” in securing GOP support, because he lacked experience. Democrats, notably Chairman Dick Durbin (D-Ill.), “praised Garcia’s record advocating in [appeals courts describing him as a compelling,] accomplished litigator with impressive breadth and depth of experience.”
At the 117th Congress’ end, senators lacked time for confirming Garcia and many remaining qualified, moderate designees whose nominations expired. Thus, Biden renamed many excellent mainstream nominees, including Garcia, on Jan. 3, and the panel approved him 11-9 on Feb. 2.
Related ideas illustrate why the Senate must expeditiously appoint Garcia. First, Rogers’ vacancy has been empty for almost nine months. Biden also nominated Garcia nearly 11 months ago. Demanding the exceptional nominees wait lengthy periods could unfairly require individuals to place lives and careers on hold. This could affect Garcia, as he is responsible for many vital DOJ duties. Third, the unfilled seat means Rogers and her colleagues must resolve abundant cases, although plentiful senior jurists decide fewer appeals. This judge has continued resolving numerous cases. Parties, counsel and citizens are clearly indebted to the experienced jurist for her ongoing service. However, the delay and political controversies among senators which left Rogers’ vacancy open seem unfair to the dedicated public servant who earned a senior judgeship months ago.
When this Congress opened, Majority Leader Chuck Schumer (D-N.Y.) needed to immediately provide a debate and chamber vote, which confirmed Bradley Garcia to the lengthy D.C. Circuit vacancy. His distinguished record means the superb nominee deserves speedy confirmation, and Garcia’s consummate qualities will permit the court to keep expeditiously, inexpensively, and fairly resolving its large docket.
Carl Tobias is a University of Richmond Law Professor.
U.S. Court of Appeals for the D.C. Circuit
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