Congress has authorized 179 active judges for the United States Courts of Appeals and 649 active judges for the United States District Courts. Eighty-two judgeships are now vacant, although the size and complexity of federal caseloads continue to increase. More than thirty openings are considered "judicial emergencies" because they have remained unfilled for eighteen months. The Ninth Circuit, which must resolve the largest docket of the twelve regional appellate courts, currently has nine vacancies on a circuit with twenty eight active judges and for which the Judicial Conference has recommended the creation of nine additional judgeships. The Speedy Trial Act's requirement that criminal cases receive preferential treatment has precluded numerous district judges from conducting a single civil trial since 1995, while the district courts have a civil backlog of thousands of suits. Indeed, Chief Justice William H. Rehnquist recently characterized as "bleak'' the prospects for appointing judges to the eighty open seats, and admonished the "President [to] nominate candidates with reasonable promptness, and the Senate [to] act within a reasonable time to confirm or reject them"
The first Section of this Article descriptively examines the history of federal judicial selection, emphasizing recent developments which led to the problem involving appointments. I find that a constellation of phenomena which can be ascribed to numerous institutions and people with some responsibility for choosing judges has created, left unresolved, or exacerbated the complications caused by unfilled judicial seats. Moreover, the problem actually has two facets. One is the persistent vacancies problem Its principal sources are expanded federal court jurisdiction and exponential caseload growth that have required Congress to enlarge the bench significantly, thereby concomitantly increasing the number and frequency of openings, since the 1960s. The other component is the current impasse. The present dilemma's primary origins are political, and it derives at least in part from different political parties' control of the White House and the Senate.
This evaluation also reveals that the complication presented by vacancies is at once complex and sensitive. It comprises a plethora of matters which range from questions that involve separation of powers to issues implicating raw partisan politics. For example, those who participate in the selection process nmst carefully strike an appropriate balance between the need for expeditious appointment and for meticulous scrutiny of individuals who will exercise the enormous power of the state and have life tenure. I conclude that the large number of judicial vacancies and their protracted nature threaten the federal courts and that the problem must be treated promptly.
The next part of the Article, therefore, explores possible solutions for empty judgeships which many officials in the executive, legislative and judicial branches of government might employ. I assess the approaches mainly in terms of their advisability, as matters of pragmatic policy, practical politics and sound governance, ascertaining that they would have varying degrees of efficacy. For instance, some measures could address the unnecessary delay which attends the permanent difficulty, but nruch delay is inherent and resists felicitous reduction. Public officials, principally in the Administration and the Senate, might concomitantly apply numerous mechanisms that would solve those political problems which contribute substantially to the existing dilemma if they had sufficient political will. Because important features of the generic complication and the recent impasse may only be amenable to amelioration, I also discuss means of addressing the effects of vacancies. The final Section affords suggestions for implementing specific alternatives that apparently would have the greatest promise.
Carl Tobias, Federal Judicial Selection in a Time of Divided Government, 47 Emory L.J. 547 (1998)