Over 2016, President Barack Obama tapped accomplished, mainstream candidates for seven of twelve federal appeals court vacancies. Nevertheless, the Senate Judiciary Committee has furnished a public hearing and vote for merely three nominees and did not conduct a hearing for any other prospect this year. 2016 concomitantly is a presidential election year in which appointments can be delayed and stopped—a conundrum that Justice Antonin Scalia’s Supreme Court vacancy exacerbates. Because appellate courts comprise tribunals of last resort for practically all cases and critically need each of their members to deliver justice, the appointments process merits scrutiny. The Essay first evaluates the records which nominees have previously assembled, President Obama’s judicial appointments process, and the appeals courts. It finds that the seven nominees are dynamic, consensus prospects. Republican senators have not collaborated with the Obama Administration, particularly since 2015 when they captured an upper chamber majority, a phenomenon that this presidential election year intensifies. The courts desperately need all of their jurists to rapidly, economically, and fairly treat growing dockets. The last section, accordingly, surveys proposals for Senate review.
Carl Tobias, Confirming Circuit Judges in a Presidential Election Year, 84 Geo. Wash. L. Rev. Arguendo 160 (2016).