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With Dubina, Barkett On the Way Out, What is 11th Circuit's Future?

By William Peacock, Esq. on August 20, 2013 | Last updated on March 21, 2019

Adios now-former Chief Judge Joel Dubina. Judge Rosemary Barkett, we'll miss you as well, especially your passionate anti-Death Penalty dissents. With those two judges on their way out, and two vacancies in place, what will the active bench look like?

If President Obama can fill the vacant seats before the end of his term, it will take an already left-leaning court and lock those leanings into place for probably the next few decades. On the other hand, if the vacancies remain unfilled, as they have for much of the recent past (one vacancy has been open for nearly three years), the composition of the court could be decided by the 2016 Presidential Election.

Dubina Departure: TBD

Earlier this year, then-Chief Judge Joel Dubina told The Atlanta Journal-Constitution that he would take senior status once one of the existing two vacancies had been filled, as "three vacancies is just an intolerable situation for [his] colleagues." That retirement may be a long way off, as the present nominee for the three-years vacant seat, Jill A. Pryor, has neither been confirmed nor denied, the other existing vacancy remains unaddressed, and as luck would have it, a third vacancy is happening regardless.

Instead of taking senior status, on July 31, Judge Dubina passed the mantle (or gavel) of Chief Judge to perennial blogger-favorite Judge Edward Carnes, reports the Montgomery Advertiser. Carnes inherits the title, and the administrative duties, while Judge Dubina stays on long enough to prevent a circuit meltdown due to the vacancies, especially since there will now be a third vacancy thanks to the Department of State.

State Dept. Beckons for Barkett

The incredible career of Mexican-born, nun-turned-judge Rosemary Barkett continues, this time on an international stage. Judge Barkett previously served as Chief Justice of the Florida Supreme Court (the first female Chief Justice in Florida) before accepting her present post on the Eleventh Circuit.

Now, with the State Department beckoning, she'll leave the Eleventh Circuit as of September 30 of this year for the Iran-United States Claims Tribunal in The Hague, reports the Journal-Constitution. According to the U.S. Department of State, the tribunal exists to arbitrate disputes between the two countries, and nationals of the two countries. It consists of three arbitrators each from the United States and Iran, as well as three more appointed by agreement of the six sitting appointees.

The Court's Composition

Once Judge Barkett leaves for Europe, that leaves the court with three vacancies, four Republican appointees, and five Democratic appointees, according to Wikipedia.

The Republican appointees consist of Chief Judge Carnes, Former Chiefs Judge Tjoflat and Dubina, and Judge Pryor. Needless to say, with Judge Tjoflat nearing his 84th birthday, and Dubina set for retirement, the right side of the court could shrink even further.

As for Democratic appointees, there are Judges Hull, Marcus, Wilson, Martin, and Jordan, with the eldest, Judge Marcus, at a comparably young sixty-seven years of age.

The composition of the court gives some insight as to why the Republican-controlled Congress has delayed confirmation of Pryor, and will likely continue to do so. Five of the seven judges on senior status, and who fill the vacancies part-time, are Republican appointees. If the Republicans in Congress can delay confirming appointees for at least two seats until 2016, and win the election, the court end up evenly split -- or even lean conservative.

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