In this essay, Professor Tobias responds to Professors Gerhardt and Painter, praising their work and providing further suggestions for how the judicial nominations process might be improved. The essay begins with a brief examination of judicial selection problems that have arisen since the failed nomination of Judge Robert Bork in 1987. Finding that partisan politics have frustrated the nomination process for a quarter century, Professor Tobias engages in a critical analysis of President Barack Obama's efforts to make improvements. He first explains the changes that the Obama administration has implemented and then critically analyzes the benefits and failings of those changes. While Professors Gerhardt and Painter focus on the deterioration of the "Gang of 14" and propose means of reinvigorating its mission, Professor Tobias concentrates on improvements that the executive branch, the Senate, and the judiciary might undertake to expeditiously fill judicial vacancies. Because the judicial nomination process tends to stall during election years, the essay concludes with the recommendation that these suggestions be implemented immediately.
Carl Tobias, Filling the Judicial Vacancies in a Presidential Election Year, 46 U. Rich. L. Rev. 985 (2012).