Law Commons^™

Confirm Judge Irma Carrillo Ramirez To The Fifth Circuit, Carl Tobias

Law Faculty Publications

The United States Senate must expeditiously confirm United States District Court for the Northern District of Texas Magistrate Judge Irma Carrillo Ramirez, who has definitely earned appointment to the United States Court of Appeals for the Fifth Circuit and will become the appellate court’s initial Latina member. This regional circuit effectively resolves substantial appeals, enjoys a large judicial complement, and certainly possesses a reputation as the nation’s most conservative appellate court. Ramirez, whom President Joe Biden nominated in mid-April, decidedly provides remarkable gender, experiential, ideological, and ethnic judicial diversity and has rigorously served as a Magistrate Judge and Assistant United …

Confirm Rachel Bloomekatz To The Sixth Circuit, Carl Tobias

Law Faculty Publications

Now that the United States Senate is convening after the July Fourth holiday, the upper chamber must promptly appoint Rachel Bloomekatz to the U.S. Court of Appeals for the Sixth Circuit. The nominee, whom President Joe Biden selected in May 2022, provides remarkable experiential, gender, and ideological expertise that she deftly realized in litigating high-profile gun control, environmental, and other significant cases in federal appellate courts and district courts. Over fifteen years, the nominee has reached law’s pantheon across a broad spectrum from extremely prestigious clerkships with Justice Stephen Breyer and particularly distinguished federal court and state court jurists to …

Appoint Judge Ana De Alba To The Ninth Circuit, Carl Tobias

Law Faculty Publications

The United States Senate must rapidly appoint Eastern District of California Judge Ana de Alba to the Ninth Circuit. This appellate tribunal is a preeminent regional circuit, which faces substantial appeals, has the largest complement of jurists, and clearly includes a massive geographic expanse. The nominee, whom President Joe Biden designated in spring 2023, would offer remarkable gender, experiential, ideological, and ethnic diversity realized primarily from serving productively with the California federal district, and state trial, courts after rigorously litigating for one decade in a highly regarded private law firm. For over fifteen years, she deftly excelled in law’s upper …

Confirm Julie Rikelman For The First Circuit, Carl Tobias

Law Faculty Publications

Now that the United States Senate has reconvened after pauses for holidays, the upper chamber must expeditiously appoint designee Julie Rikelman to the U.S. Court of Appeals for the First Circuit, which is the smallest, albeit critical, appellate court. The nominee, whom President Joe Biden tapped during late July 2022, would supply remarkable experiential, gender, and ideological diversity gleaned from pursuing much cutting-edge reproductive freedom litigation, which included arguing Dobbs before the Supreme Court that overturned Roe v. Wade. The nominee has definitely excelled in law’s highest echelon over twenty-plus years, most recently as the U.S. Litigation Director in the …

Filling Lower Court Vacancies In Congress' Lame Duck Session, Carl Tobias

Law Faculty Publications

In this midterm election year of 2022, the nation’s divided political parties are in a battle royale to win the exceedingly close Senate majority. One important explanation for the fight is that the party which assumes the next Senate majority will necessarily have considerable power to affect the confirmation of federal judges. For example, during Donald Trump’s presidency, Republicans controlled the Senate; therefore, the chief executive and the upper chamber proposed and confirmed fifty-four accomplished,
extremely conservative, young appeals court, and 174 district court, jurists. The Republican White House and Senate majority confirmed judges by rejecting or deemphasizing the rules …

The Problem Of Problem-Solving Courts, Erin Collins

Law Faculty Publications

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively — at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist?

This Article seeks to answer that question by scrutinizing …

The Republican Senate And Regular Order, Carl W. Tobias

Law Faculty Publications

Now that the 114th Congress has reached the first session’s conclusion, the purported application of regular order to a major Senate constitutional duty—rendering advice and consent on presidential nominees—merits analysis. This evaluation illuminates serious deficiencies, which plagued 2015 confirmations. Especially important was the GOP’s failure to expeditiously suggest aspirants for White House consideration, and specifically failing to fill “judicial emergencies,” provide hearings and ballots swiftly, conduct floor debates when required rapidly, and confirm more than 11 judges all year. This obstruction has numerous deleterious consequences; the most significant, however, is not fulfilling the constitutional responsibility to proffer advice and consent …

Judicial Selection In Congress' Lame Duck Session, Carl W. Tobias

Law Faculty Publications

This Article first scrutinizes the Obama Administration confirmation and nomination processes. It then critically explores selection and concludes that Republican obstruction instigated the most open positions the longest time. Because this deficiency undermines swift, economical, and fair case resolution, the Article suggests ideas to promptly decrease the remaining unoccupied judgeships after the session commences.

Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Kevin C. Walsh

Law Faculty Publications

Judge Richard Posner's well-known view is that constitutional theory is useless. And Judge J Harvie Wilkinson III has lambasted constitutional theory for the way in which its "cosmic" aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson-in the popular press, in law review articles, and in books-have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that …

Filling The District Of Arizona Vacancies, Carl W. Tobias

Law Faculty Publications

The judicial vacancy crisis must end. The federal bench has experienced nearly a ten percent vacancy rate over an unprecedented four and a half-year period. The substantial number and protracted character of those openings have imposed numerous detrimental effects. These phenomena have delayed the scheduling of jury trials in many civil cases and even propelled termination of some litigation because the Speedy Trial Act requires that criminal matters have precedence. Indeed, the emergency designation has meant that some criminal proceedings were delayed in the Arizona District. The vacancy crisis places additional pressure on sitting judges, particularly the eight senior judges …

Constructing Courts: Architecture, The Ideology Of Judging, And The Public Sphere, Allison Anna Tait

Law Faculty Publications

In several countries, governments have embarked on major building expansion programs for their judiciaries. The new buildings posit the courtroom as their center and the judge as that room’s pivot. These contemporary projects follow the didactic path laid out in Medieval and Renaissance town halls, which repeatedly deployed symbolism in efforts to shape norms. Dramatic depictions then reminded judges to be loyal subjects of the state. In contrast, modern buildings narrate not only the independence of judges but also the dominion of judges, insulated from the state. The significant allocation of public funds reflects the prestige accorded to courts by …

Post-Crisis Reconsideration Of Federal Court Reform, David R. Cleveland

Law Faculty Publications

No abstract provided.

Commentary, Considering Lesbian, Gay, Transgender, And Bisexual Nominees For The Federal Courts, Carl W. Tobias

Law Faculty Publications

Professor Tobias details the ultimately unsuccessful nomination of Edward DuMont to the United States Court of Appeals for the Federal Circuit in 2010-11 to illustrate the obstacles encountered by LGBT individuals in the federal judicial selection process.

Judicial Opinion Writing: An Annotated Bibliography, Ruth C. Vance

Law Faculty Publications

No abstract provided.

Of Inkblots And Originalism: Historical Ambiguity And The Case Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

Ever since Justice Goldberg's concurring opinion in Griswold v. Connecticut, the Ninth Amendment has been a flashpoint in debates over the merits of originalism as an interpretive theory. Judge Bork's comparison of interpreting the Ninth Amendment to reading a text obscured by an inkblot has been particularly subjected to intense criticism. The metaphor has been attacked as erasing the Ninth Amendment from the Constitution, and as representing the inevitably selective and inconsistent use of

text and history by so-called originalists.

It turns out, however, that not only was Judge Bork right to reject Justice Goldberg's reading of the Ninth Amendment, …

In Memoriam: Robert R. Merhige, Jr., Ronald J. Bacigal

Law Faculty Publications

It is difficult to write about Judge Merhige in an academic journal. His greatness lay not in formulating abstract legal doctrine, but in applying the law to real life situations. When I began researching his biography in 1986, the most pleasant part of the process was personal interviews with the Judge spanning two and a half years and filling some fifty audio tapes. Unfortunately, I was never able to capture his humanity in print and may have done him a disservice by writing his biography the way a law professor does-focusing on the intellectual aspects of his famous cases, rather …

The Ermine And Woolsack: Disciplinary Proceedings Involving Judges, Attorney-Magistrates, And Other Judicial Figures, David R. Cleveland, Jason Masimore

Law Faculty Publications

No abstract provided.

The Theory And Practice Of Defending Judges Against Unjust Criticism, Ronald J. Bacigal

Law Faculty Publications

Having set forth the above premise and conclusion, the American Bar Association Subcommittee on Unjust Criticism of the Bench promulgated a model program for bar associations to follow when countering inaccurate or unjust criticism of judges. This article presents no quarrel with the model program but instead seeks to relate the model to an empirical account of how it might operate in practice. It must be remembered that the acid test of a theoretical model is not whether the theory is "true" in a purely academic sense but whether the model is useful in describing the "real world. " In …

A Tribute To Malcolm Ray Doubles, Ronald J. Bacigal

Law Faculty Publications

The University of Richmond Law Review respectfully dedicates this issue to the memory of Malcolm Ray Doubles, 1900-1987. Judge Doubles earned his B.S. degree at Davidson College and his law degree at the T.C. Williams School of Law. He practiced with the Richmond law firm of Carter, Crawford and Redd before leaving to become a full-time law professor at the T.C. Williams School of Law. He served as dean of the law school from 1930 to 1947 and from 1971 to 1972, and as Judge of the Hustings Court of Richmond from 1947 to 1965. The pages that follow serve …

Review Of The High Court Of Delegates, William Hamilton Bryson

Law Faculty Publications

A book review on The High Court of Delegates by G. I. 0. Duncan.