One crucial locus of gridlock is appointments to the United States Courts of Appeals, which have grown extremely contentious, as the circuits resolve disputes about controversial issues and can effectively be tribunals of last resort for designated areas. Continuous Republican and Democratic charges, recriminations, and divisiveness have roiled the process for decades. The bench constitutes 179 judgeships; however, seventeen remained vacant at President Barack Obama's second inauguration notwithstanding his pledge to end the "confirmation wars" by assiduously consulting senators. Laboring without ten percent of the appellate court members subverts prompt, inexpensive and fair case disposition and undermines citizen respect for selection and the government. These propositions demonstrate that upper chamber gridlock and circuit appointments merit review, which this piece undertakes.
Part One explores the conundrum. The assessment concludes that it derives from rampant partisanship and skyrocketing caseloads, which necessitate more judicial positions; they enlarge the number of vacancies, which complicates selection. The paper next descriptively and critically recounts developments in Obama's tenure. Scrutiny reveals that appointees principally comprised very qualified ethnic minority and female jurists who averaged fifty-five years of age upon nomination. Their confirmations improved diversity and signaled the realization of a career judiciary while marginally widening the experience and age range of the appeals courts. Determining that Obama has proffered sufficient, highly competent individuals, whom the Senate Judiciary Committee has robustly approved, to facilitate processing, but that the chamber has neglected to expeditiously vote on many, this Article canvasses promising ideas that will enhance selection and counter gridlock.
Carl Tobias, Senate Gridlock and Federal Judicial Selection, 88 Notre Dame L. Rev. 2233 (2013)