Selection of federal appellate court judges is now extremely controversial. Slowed nominee processing, accusations and countercharges between Democrats and Republicans, as well as "paybacks," have characterized appointments since 1990. One tenth of the 179 active circuit judgeships authorized by the United States Congress are perennially vacant, and substantial numbers of these positions can remain open for years. The Senate Judiciary Committee increasingly votes along straight political party lines, and Democratic senators even relied on filibusters to deny nominees positions on the United States Courts of Appeals for the District of Columbia Circuit as well as the Fourth, Fifth, and Ninth Circuits.
The existence of numerous, protracted vacancies, therefore, has detrimentally affected the whole appointments process, appellate courts and judges, entities and individuals working on selection, and attorneys and parties who take appeals to the regional circuits. For example, lengthy openings have postponed case resolution and frustrated the goal of inexpensive and equitable appellate disposition, while vacancies forced the Sixth and Ninth Circuits to cancel oral arguments, imposing unnecessary expenditures and delay. The complication's persistence appears to have undermined respect for all three federal government branches, most significantly the institutions of the presidency and the Senate, but even the judiciary.
These propositions mean that federal appeals court appointments merit scrutiny, which this Article undertakes. The initial Section discusses the reasons why many circuit judgeships have lacked occupants for extensive periods and finds that several phenomena have contributed to the appellate court dilemma. An important factor is that the regional circuits are the courts of last resort for their geographic areas, in particular when treating modern policy issues such as abortion and federalism, because the Supreme Court hears so few appeals. Similarly cogent is the prevalence of divided government: until recently, during the past two decades, one political party has controlled the Executive Branch and the other the upper chamber. I find Democratic and Grand Old Party ("GOP") presidents and senators have almost identical responsibilities for the conundrum. They assumed remarkably analogous stances when each occupied the White House and possessed a Senate majority, while either could have improved the circumstances by exercising the requisite political will.
Part II evaluates appellate court selection since January 2002. This analysis reveals that phenomena-which include stalled nominee consideration, divisiveness, and partisan wrangling-that have been manifested for more than a decade continued to pervade appointments and may even have intensified. One trenchant illustration was the 2002 Judiciary Committee rejection of Judges Priscilla Owen and Charles Pickering for the Fifth Circuit, with ten Democrats voting against and nine Republicans favoring the jurists-although the full Senate might well have confirmed them. The concluding segment of the Article offers proposals for the future, which should rectify or ameliorate the current situation.
Carl Tobias, The Federal Appellate Court Appointments Conundrum, 2005 Utah L. Rev. 743