Albert Diaz, a nominee for the 4th Circuit, has been waiting longer for Senate confirmation than any other pending appellate nominee. President Barack Obama nominated Diaz, a former military judge now on the North Carolina trial bench, in November 2009. Diaz (pictured above) has awaited a vote since getting the unanimous support of the Senate Judiciary Committee in January.
Obama, in a speech Wednesday night, took what for him is an unusual step — singling out Diaz by name as a stalled judicial nominee.
“This is a widely respected state court judge, military judge, and Marine Corps attorney,” Obama told a gala held by the Congressional Hispanic Caucus Institute, according to a White House transcript. “He was approved unanimously by the Judiciary Committee. But just last month, the Senate Republican leader objected to a vote on his confirmation yet again.”
On Aug. 5, the Senate left Washington for its late-summer recess after confirming Judge James Wynn Jr. for the 4th Circuit but without confirming Diaz. The two were nominated for the Richmond-based court on the same day. Diaz would be the court’s first Hispanic member.
Senate Minority Leader Mitch McConnell (R-Ky.) spoke on the issue a few weeks earlier, July 14, when he objected to voting on the two nominations. He noted that Senate Democrats blocked several of President George W. Bush’s nominees for the 4th Circuit, including Rod Rosenstein, who was and still is the U.S. attorney for Maryland. McConnell also noted how Obama had recently bypassed the Senate in appointing a new director of Medicare and Medicaid before that nominee had a hearing.
“Given the president has been so dismissive of the Senate’s right to provide advice and consent under the Constitution,” McConnell said then, “I’m not inclined at this point to consent to the agreement” to vote on Diaz and Wynn.
Asked for a response to Obama’s speech Wednesday, McConnell spokesman Don Stewart wrote in an e-mail that “there’s nothing to respond to” because Senate Majority Leader Harry Reid (D-Nev.) has not asked for a vote. “If he doesn’t ask for a vote, we can’t say no,” he wrote.
Reid spokeswoman Regan Lachapelle wrote in an e-mail that Democrats “are still working to get an agreement with Republicans to confirm the President’s judicial nominations including this one.”
There has been no organized, public opposition to Diaz’s nomination. Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Judiciary Committee, criticized Diaz’s “views about empathy” in January, but Sessions still voted for him in committee. (Diaz wrote in response to a Senate questionnaire that empathy “should play no role in deciding a case” but that, broadly defined, it “helps to promote public confidence in the decisions a judge makes.”)
The Senate has confirmed three Obama nominees for the 4th Circuit: Wynn, Judge Andre Davis and Judge Barbara Keenan. The 15-seat court has one vacancy with no nominee. Click here and here for previous coverage of Obama’s attempts to fill the court.
National Law Journal photo by Diego M. Radzinschi.