The United States Court of Appeals for the Ninth Circuit must resolve the largest and most complicated caseload of the twelve regional appellate courts. Congress has authorized twenty-eight active judges for the circuit, while the Judicial Conference of the United States has recommended that Congress approve nine additional judgeships for the court. The Ninth Circuit currently has seven vacancies, four of which are considered "judicial emergencies" because the openings have remained unfilled for eighteen months, even as the size and complexity of the court's civil and criminal dockets continue to increase. President Bill Clinton submitted the names of nominees for seven vacancies during 1997; however, the Senate had confirmed no one for the court when the first session of the 105th Congress recessed in mid-November. The large number of empty seats and their prolonged character as well as burgeoning appeals have required the Ninth Circuit to cancel 600 oral arguments and to rely on many appellate and district judges who are not active members of the court when staffing panels. The factors above mean that the situation in the Ninth Circuit may have reached crisis proportions. These circumstances warrant analysis; this essay undertakes that effort.
I first examine how conditions in the Ninth Circuit became so critical, emphasizing caseload expansion and judicial openings. The second part evaluates recent developments that have led to vacancies in one-quarter of the tot.al complement of active judgeships which Congress has authorized for the court. Finding that the growing number and complexity of civil and criminal appeals filed in the Ninth Circuit and that the remote possibility of expeditiously confirming judges for all of the present openings seriously threaten appellate justice, I afford suggestions which could remedy this conundrum.
Carl Tobias, The Judicial Vacancy Conundrum in the Ninth Circuit, 63 Brook. L. Rev. 1283 (1997)