Things actually got funny during the Senate Judiciary Committee’s hearing today on the nominations of Judges Albert Diaz and James Wynn of North Carolina to the Fourth Circuit Court of Appeals. You can see that for yourselves in the video at the left.
Funny happened when Senator Al Franken, formerly of Saturday Night Live, expressed concern about the possible lack of diversity of the Fourth Circuit if both nominees are confirmed. Judge Wynn and Judge Diaz will add great diversity to the Fourth Circuit, so the Senator wasn’t asking about diversity in the usual sense.
The "diversity" he asked about involved the similar military backgrounds of Judge Wynn and Judge Diaz, who both served as attorneys in the military and as military judges. The comedian turned Senator also questioned whether Judge Wynn, formerly a Navy captain, and Judge Diaz, formerly a lieutenant-colonel in the Marines Corps Reserves, could be fair to litigants from other branches of the armed forces. Both Judges responded by pledging to treat all members of the military equally, a bit tongue in cheek, to a deadpan Senator Franken.
Up until that point, the hearing was the serious affair that you would expect. The Committee Chairman (Senator Benjamin Cardin of Maryland, sitting in for an absent Senator Patrick Leahy) and the ranking minority member (Senator Jeff Sessions of Alabama) opened the proceedings by observing the rarity of the Committee considering two nominees simultaneously. Senator Cardin attributed the unusual double hearing to the bipartisan support that North Carolina’s nominees have received from North Carolina Senators Kay Hagan and Richard Burr.
Senator Burr, who introduced the nominees, asked the Committee to give the Judges an "expedited review and referral" to the full Senate. The process is already moving quickly. This hearing took place less than six weeks after the nominations from President Obama.
After subsequent remarks from Senator Hagan about the need for North Carolina to have greater representation on the Fourth Circuit, Judge Wynn and Judge Diaz each gave a brief opening statement, and introduced the many family members and other persons who had come to support them at the hearing.
There was then a brief period of questioning from the Committee. Both nominees were asked about the role of "empathy," a word which became somewhat of a flashpoint during the hearings on Justice Sonia Sotamayor’s nomination, in judicial decisionmaking. Neither Senator Sessions nor Senator Cardin decided to wade in and ask Judge Diaz about derivative actions, fiduciary duties, or any other corporate matters based on his many Business Court opinions. The only question even approaching a hardball was Senator Sessions asking Judge Wynn about a couple of his Fourth Amendment decisions.
The Judiciary Committee’s website describes the procedure from here out. There is a short period for follow-up written questions by members of the Committee. After those are asked and answered, the nominations can be listed for consideration by the full Committee during an Executive Business Meeting. If the Committee orders the nominations to be reported, they are placed on the Senate’s Executive Calendar for consideration by the full Senate. Let’s hope the process continues to move at a fast pace, though Senator Leahy pointed out in a written statement that nominations are stalling when they reach the Executive Calendar.
If you want to watch the entire hearing, there’s a full webcast available.