Federal court selection is eviscerated. Across five years in Barack Obama’s presidency, the judiciary confronted some eighty-five vacancies because Republicans never agreed to prompt Senate consideration. Only when the Democratic majority ignited the “nuclear option,” a rare action that permitted cloture with fewer than sixty votes, did gridlock end. However, openings quickly grew after the Grand Old Party (GOP) captured an upper chamber majority, notwithstanding substantial pledges that it would supply “regular order” again. Over 2015, the GOP cooperated little, approving the fewest jurists since Dwight Eisenhower was President. However, selection might worsen. This year is a presidential election year, a period in which confirmations traditionally slow to a halt, and a predicament that controversy regarding Justice Antonin Scalia’s High Court vacancy exacerbates. At the next inauguration, the bench may experience 100 unfilled circuit and trial level positions. These concerns demonstrate that the broken appointments system requires permanent improvement. This survey evaluates confirmations during President Obama’s tenure, detecting that Republicans have plumbed new depths for obstruction. Because this recalcitrance undermines judicial selection, the delivery of justice and respect for the coequal branches of government, the analysis proffers multiple long-term solutions, notably a bipartisan judiciary, which could enhance the process.
Carl Tobias, Fixing the Federal Judicial Selection Process, 65 ELJ Online 2051 (2016).