Senate Gridlock and Federal Judicial Selection
Tobias, Carl, Notre Dame Law Review
One crucial locus of gridlock is appointments to the United States Courts of Appeals, which have grown extremely contentious, as the circuits resolve disputes about controversial issues and can effectively be tribunals of last resort for designated areas. Continuous Republican and Democratic charges, recriminations, and divisiveness have roiled the process for decades. The bench constitutes 179 judgeships; however, seventeen remained vacant at President Barack Obama's second inauguration notwithstanding his pledge to end the "confirmation wars" by assiduously consulting senators. Laboring without ten percent of the appellate court members subverts prompt, inexpensive and fair case disposition and undermines citizen respect for selection and the government. These propositions demonstrate that upper chamber gridlock and circuit appointments merit review, which this piece undertakes.
Part One explores the conundrum. The assessment concludes that it derives from rampant partisanship and skyrocketing caseloads, which necessitate more judicial positions; they enlarge the number of vacancies, which complicates selection. The paper next descriptively and critically recounts developments in Obama's tenure. Scrutiny reveals that appointees principally comprised very qualified ethnic minority and female jurists who averaged fifty-five years of age upon nomination. Their confirmations improved diversity and signaled the realization of a career judiciary while marginally widening the experience and age range of the appeals courts. Determining that Obama has proffered sufficient, highly competent individuals, whom the Senate Judiciary Committee has robustly approved, to facilitate processing, but that the chamber has neglected to expeditiously vote on many, this Article canvasses promising ideas that will enhance selection and counter gridlock.
I. THE HISTORY OF THE JUDICIAL SELECTION DIFFICULTY
The history of the appointments predicament requires limited consideration in this Article because the concern's origins and development have experienced comprehensive investigation elsewhere (1) and the contemporary situation is most relevant. The problem actually comprises two aspects. One salient element has been the persistent vacancies dilemma, which resulted from expanding federal court jurisdiction and soaring dockets initially manifested throughout the 1960s. These enlarged the regional circuit and district court judgeships, radically increasing the quantity and frequency of open posts while slowing confirmations. Another essential dimension of the modern vacancy conundrum is political and can be ascribed to conflicting Republican and Democratic control of the White House and Senate that commenced about a quarter century ago. (2)
B. The Persistent Vacancies Problem
Congress enhanced federal jurisdiction around the 1960s. (3) It criminalized much behavior and recognized numerous federal civil actions, developments that have contributed to accelerated cases and concomitant burgeoning appeals. (4) Congress mainly addressed the rises by expanding judgeships to the present complement: 179. (5) A study of the decade and a half following 1980 concluded that appointment times rapidly mushroomed. (6) Circuit nominations demanded one year and confirmations three months, and both perceptibly increased. (7) Conditions acutely worsened subsequently. For example, nominations consumed practically twenty months while appointments reached six months in 1997--the earliest year of President Bill Clinton's last term--and in 2001--the starting year of President George W. Bush's inaugural administration. (8) The specific periods closely resemble Obama's term and merit systematic comparative analysis.
The numerous and convoluted steps and number of participants in the contemporary nomination and confirmation processes mean that a certain amount of delay seems inevitable. (9) Presidents and staff charged with responsibility for picking appellate nominees traditionally consult home state elected officers, pursuing much support and constructive advice regarding putative choices. …