Many of the 179 active federal appeals court judgeships authorized by Congress have remained vacant for protracted times. Over the last dozen years, the appellate system has experienced numerous openings, which have generally comprised ten percent of those seats. Particular tribunals' situations have been worse. At various times since 1996, the United States Courts of Appeals for the Second, Fourth, and Ninth Circuits operated without a third of their judges. However, the most egregious and recent illustration is the United States Court of Appeals for the Sixth Circuit. Almost half of that court's positions are now empty, while a number of its seats have been unfilled for extensive periods.
Judicial appointments to the Sixth Circuit have proven highly controversial, eliciting accusations and countercharges among Senate members who represent states located in that circuit. Political phenomena substantially explain these machinations.
Six of the Sixth Circuit's sixteen positions are currently open, and there is evidence that the tribunal performs less efficaciously than some of the twelve regional circuits. For example, most appellate courts provide greater percentages of published opinions than does the Sixth Circuit. Moreover, no tribunal relies so heavily on visiting judges to constitute panels. The Sixth Circuit also decides appeals more slowly than any other appellate court except the one with the largest docket. Sixth Circuit vacancies have even necessitated cancellation of oral arguments, which imposes unnecessary expense and delay on the tribunal, judges, counsel, and parties.
All of the above ideas suggest that federal judicial appointments to the Sixth Circuit have grown increasingly controversial and deserve analysis, which this essay undertakes. Part One explores the origins and development of the problems that have accompanied Sixth Circuit judicial selection. Part Two evaluates numerous potential remedies for the difficulties affecting appointments which the first segment identifies.
Carl Tobias, Sixth Circuit Federal Judicial Selection, 36 U.C. Davis L. Rev. 721 (2003)