Federal judicial selection has become increasingly controversial. Allegations and recriminations, partisan division, and incessant paybacks have accompanied the appeals court appointments process for decades. These phenomena were pervasive in the administration of President George W. Bush as well as in nominations and confirmations to the United States Court of Appeals for the Fourth Circuit, particularly with respect to judgeships assigned to North Carolina.
The protracted vacancies have eroded the Fourth Circuit's delivery of justice, as operating without the fifteen circuit judges whom Congress authorized has exacted a toll. Across two and a half recent years, the court functioned absent a quarter of its judicial complement and for more than a year without one-third. In fact, the court supplies published opinions for six percent of appeals, and oral arguments for thirteen percent of appeals-the fewest among the twelve regional circuits. For over four years beginning in September 1999, the Fourth Circuit had no active member from North Carolina, and for the ensuing seven years merely one active judge represented the state on the court.
The Fourth Circuit appointments process illustrates numerous difficulties that have plagued contemporary selection. Because of these difficulties, the court had four openings when President Barack Obama was inaugurated, and a fifth arose early in his tenure. The nascent White House devoted much attention to the Fourth Circuit, pledged to end the "confirmation wars," and realized considerable success, notwithstanding the problematic history of counterproductive dynamics. At the conclusion of the administration's first half term and the 111th Senate, Obama had appointed jurists to four of the court's openings, mainly through assiduous consultation with home state elected officials and the nomination of ethnically and gender diverse sitting judges. Fourth Circuit judicial selection might also reflect the Obama Administration agenda regarding confirmation and serve as an informative template for subsequent appointment endeavors.
These recent developments demonstrate that judicial selection in the Fourth Circuit deserves review. This Article first analyzes the history of the Fourth Circuit process, emphasizing developments in the Bush Administration. The Article then descriptively and critically scrutinizes nomination and confirmation throughout the Obama Administration. The Article next derives lessons from the Fourth Circuit initiative and compares it with the Obama Administration's national selection efforts and those of earlier administrations. The Article concludes with recommendations for how the President and the Senate could enhance selection procedures in the Fourth Circuit, and considers how lessons extracted from that selection process may improve appointments throughout the nation.
Carl Tobias, Filling the Fourth Circuit Vacancies, 89 N.C.L. Rev. 2161 (2011)