When Donald Trump became President, the United States Court of Appeals for the Ninth Circuit had four judicial vacancies that the Administrative Office of the U.S. Courts (AO) identified as “judicial emergencies.” The court also faces a larger caseload than all the other regional circuits, and has frequently decided appeals the least swiftly. The 2016 election returns indicate that more confirmations will be necessary due to additional court members’ probable retirement or assumption of senior status during President Trump’s administration. Striking politicization could frustrate this effort, however. Soon after the inauguration, President Trump signed a novel executive order proscribing U.S. immigration travel from seven predominantly Muslim nations— which the court of appeals subsequently blocked—leading President Trump to criticize the tribunal as chaotic and the motions panel opinion and the judges who decided the case as “so political.” Because the Ninth Circuit resolves the greatest number of filings, and often does so more slowly than other regional circuits even when the tribunal is at full capacity, the compelling need for the President and the Senate to fill these four open positions deserves scrutiny. This essay initially canvasses the appellate vacancy conundrum’s rise and continued growth. The essay then descriptively and critically evaluates selection throughout President Barack Obama’s administration while reviewing the Ninth Circuit’s present situation. Ascertaining that the dilemma resulted partly from limited cooperation between Democrats and Republicans and the fortuity that multiple Ninth Circuit jurists chose to assume senior status near the end of President Obama’s tenure, Part III assesses major implications of the vacancy crisis. This section finds that GOP obstruction distinctly exacerbated the rampant partisanship, strident divisiveness, and incessant paybacks that have clearly eviscerated judicial appointments, phenomena which President Trump could intensify, as exemplified by his corrosive rhetoric directed at judges in the Ninth Circuit and the federal bench more generally. Because those complications restrict the delivery of justice while harming entities and individuals engaged in federal court litigation, the final section proffers suggestions for President Trump and the upper chamber to speedily address the Ninth Circuit openings.
Carl Tobias, Combating the Ninth Circuit Judicial Vacancy Crisis, 73 Wash. & Lee L. Rev. Online 687 (2017).