Senate gridlock and federal judicial selection.

• Author: Tobias, Carl
• Position: The American Congress: Legal Implications of Gridlock

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.

1. THE HISTORY OF THE JUDICIAL SELECTION DIFFICULTY

   1. Introduction

      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)

   2. 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. Nevertheless, administrations conventionally insist on assuming the substantive lead when mustering nominations for those vacancies because the circuits, except D.C., include multiple jurisdictions and the courts' opinions encompass broader application than district judgments. Numerous officials concomitantly adopt commissions which may assist recruitment by canvassing possible nominees and swiftly proposing several capable applicants. The Federal Bureau of Investigation (FBI) performs thorough "background checks." The American Bar Association (ABA) evaluates designees' core qualifications and rates the candidates, a useful service that it has provided since the mid-1950s. (10) The Department of Justice (DOJ), especially the Office of Legal Policy (OLP), might help screen aspirants, while DOJ prepares nominees for the Senate confirmation process. The Senate Judiciary Committee analyzes potential court members, stages hearings which probe selections, and carefully reviews and casts votes on them; nominees approved may have chamber debates, when necessary, preceding floor ballots.

   3. The Contemporary Dilemma

      Article II's wording could suggest, and preeminent observers maintain, that the Framers intended senators to cabin unwise administration judicial choices; yet politics has suffused the process since the nation's establishment. (11) Politicization severely multiplied after President Richard Nixon staunchly pledged to demonstrably improve "law and order" by nominating "strict constructionists" (12) and increased most prominently once Judge Robert Bork lost his dramatic 1987 Supreme Court nomination fight. (13) Acrimonious, crippling partisanship substantially rose, while divided government and the fervent hope that the party lacking White House control might secure the next presidential election and, consequently, make future appointments, supplied consummate incentive to procrastinate. Administrations, chamber and committee leaders, and numerous senators were partly responsible for multiple downward spiraling problems.

      Rather slow nominations may explain the dearth of confirmations. In early 1997 and 2001, Presidents Clinton and Bush submitted relatively few circuit prospects, and opponents directly leveled vociferous criticisms at many. (14) Both White Houses nominated more lawyers in sizable clusters near pertinent recesses; this stymied action. (15) Elected officials who forwarded persons somewhat delayed the pace. In jurisdictions without senators from the chief executive's party, identifying the officers and treating specific participation requests consumed large amounts of time. (16) Bush's minimal consultation undercut selection, (17) and the drastically curtailed examination which Republicans accorded Clinton nominees might have fostered Democratic paybacks. (18) Accentuated controversy respecting ABA activities confounded appointments. In 1997, Senator Orrin Hatch (R-Utah), the Judiciary Committee chair, discontinued formal American Bar participation regarding committee evaluation, although Clinton always used the material. (19) During Bush's first weeks, he suspended ABA rankings prior to nominations, a decision which routinely smiled confirmations because Democrats invariably requested the assessments' completion ahead of merits votes. (20)

      The Judiciary Committee deserved partial responsibility for the small number of appointments when the panel failed to diligently study, conduct hearings, and vote on, more nominees. The Committee usually arranged panel hearings respecting a sole pick every month the chamber was in session. (21) However, in 1997 and 2001, few jurists won confirmation, essentially due to resource inadequacies and multiple compelling political elements, such as the opposition's ideological critiques lodged at circuit nominees. (22) Additional pressing congressional business and the Senate's unanimous-consent procedure, which allows a lone member to halt ballots, explicate stymied nominee floor consideration.

      The persistent and modern openings concerns have numerous deleterious impacts. Both aspects severely pressure courts and frustrate counsel and litigants, who must compete for scarce judicial resources. (23) Numbers of appeals proceed slowly because complex and expanding prosecutions mean that some district jurists conduct no civil trials, forcing a multitude of civil litigants to wait interminably. (24) Throughout 1997, stunning case growth and protracted vacancies required that a few circuits suspend oral arguments. (25) Voluminous, complicated dockets and remarkably long vacancies created so much difficulty then and in 2001 that Chief Justice William Rehnquist astutely employed the unprecedented concept of publicly insisting that the executive branch and Senate, which different parties controlled, fill the seats. (26)

2. OBAMA ADMINISTRATION JUDICIAL SELECTION

   1. Descriptive Evaluation

      Obama artfully crafted appointment plans, concentrating on numerous activities related to the circuits. He speedily drafted as White House Counsel experienced attorney Gregory Craig and other impressive lawyers who recruited designees. (27) Vice President Joe Biden's lengthy Judiciary Committee service permitted him to offer many cogent insights, especially about smoothly confirming nominees. (28) The selection group foresaw and skillfully handled numbers of relevant matters, in particular a new Supreme Court vacancy, by delineating pertinent qualifications and compiling "short lists" of extraordinary possibilities. This White House assigned the Counsel's Office major appellate court responsibility and gave the DOJ several duties involving nominee preparation for the Senate process. Obama reinstated ABA scrutiny before making nominations. He determined that the ABA furnishes valuable perspectives; early inquiries unearth salient...