Give Judge Gal­lagher a fi­nal vote

Baltimore Sun - - COMMENTARY - By Carl To­bias Carl To­bias holds the Wil­liams Chair in Law at the Univer­sity of Rich­mond. His email is cto­bias@rich­mond.edu.

On Sept. 8, 2015, Pres­i­dent Barack Obama nom­i­nated Stephanie Gal­lagher, who has served as a U.S. Mag­is­trate Judge in the Dis­trict of Mary­land since 2011, for a va­cancy on the dis­trict of Mary­land. Judge Gal­lagher is a well-qual­i­fied, main­stream nom­i­nee who en­joys the pow­er­ful sup­port of Mary­land Demo­cratic Sens. Bar­bara Mikul­ski and Ben Cardin. The Se­nate Ju­di­ciary Com­mit­tee ap­proved Judge Gal­lagher on Oct. 29 with­out dis­sent. How­ever, the nom­i­na­tion has lan­guished on the floor ever since, prin­ci­pally due to GOP lead­ers’ re­fusal to al­low her con­fir­ma­tion de­bate and vote.

Be­cause Judge Gal­lagher is an ex­pe­ri­enced, con­sen­sus nom­i­nee and the dis­trict of Mary­land needs this va­cancy filled, the Se­nate must promptly con­duct her fi­nal de­bate and vote.

The dis­trict cur­rently has one va­cancy in10 ac­tive judge­ships. This means that the court lacks 10 per­cent of its ac­tive ju­di­cial com­ple­ment, which frus­trates ef­forts to promptly, in­ex­pen­sively and fairly re­solve dis­putes. Be­cause crim­i­nal pros­e­cu­tions re­ceive prece­dence un­der the Speedy Trial Act, lit­i­gants par­tic­i­pat­ing in civil suits ex­pe­ri­ence dif­fi­culty se­cur­ing trial dates and con­clud­ing their lit­i­ga­tion. De­cid­ing cases with­out a tenth of the judge­ships au­tho­rized con­comi­tantly places in­creased pres­sure on the court’s judges.

When Pres­i­dent Obama nom­i­nated Judge Gal­lagher more than a year ago, he praised her ex­cel­lent le­gal ca­reer, ex­press­ing con­fi­dence that she would be a dis­tin­guished pub­lic ser­vant and a valu­able ad­di­tion to the court. The White House news re­lease ob­served that Judge Gal­lagher had served as a Mary­land mag­is­trate judge for five years, as an as­sis­tant U.S. at­tor­ney for six years and as a part­ner and as­so­ci­ate at sev­eral ex­cel­lent law firms for nu­mer­ous ad­di­tional years.

How­ever, the Ju­di­ciary Com­mit­tee only con­ducted Judge Gal­lagher’s hear­ing on April 2, 2016. The Mary­land sen­a­tors in­tro­duced her at the ses­sion, praised her strong qual­i­fi­ca­tions and called for prompt Se­nate con­fir­ma­tion. That hear­ing pro­ceeded smoothly, and the sen­a­tors who asked ques­tions seemed sat­is­fied with Judge Gal­lagher’s re­sponses. On May 19, the panel ap­proved her on a voice vote with lit­tle dis­cus­sion and no con­tro­versy.

Since May, how­ever, Judge Gal­lagher’s ap­point­ment has lan­guished on the floor await­ing a fi­nal de­bate and vote. Se­nate GOP lead­ers have main­tained that they are re­turn­ing the up­per cham­ber to “reg­u­lar or­der.” Nonethe­less, Judge Gal­lagher and many other highly qual­i­fied, mod­er­ate nom­i­nees have waited months for de­bates and votes. Sen­a­tors Mikul­ski and Cardin have re­quested a prompt floor bal­lot, yet Sen. Mitch McConnell, a Ken­tucky Repub­li­can and the ma­jor­ity leader, has failed to ar­range it. Sev­eral Demo­cratic sen­a­tors have sought unan­i­mous con­sent to vote on Judge Gal­lagher and 18 re­main­ing dis­trict nom­i­nees who also need fi­nal votes, but Repub­li­cans have ob­jected. If the GOP fol­lows reg­u­lar or­der, Judge Gal­lagher will ap­par­ently re­ceive a floor bal­lot soon. How­ever, the Se­nate re­cently re­turned from its lengthy sum­mer re­cess and could leave to cam­paign as early as this week.

It is past time for the Se­nate to vote on Stephanie Gal­lagher. She is a strong, con­sen­sus nom­i­nee whom both Mary­land sen­a­tors sup­port. More­over, the dis­trict must have all of its ac­tive judges to de­liver jus­tice. The dis­trict’s ju­di­ciary as well as in­di­vid­u­als and busi­nesses lit­i­gat­ing in fed­eral court de­serve a full bench, while Judge Gal­lagher mer­its a fi­nal vote. Thus, sen­a­tors must con­duct Judge Gal­lagher’s de­bate and vote be­fore they de­part to cam­paign.

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