Law Commons^™

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 …

How Biden Began Building Back Better The Federal Bench, Carl Tobias

Washington and Lee Law Review Online

In October 2020, Democratic presidential nominee Joseph Biden famously expressed regret that the fifty-four accomplished, conservative, and young federal appellate court jurists and the 174 comparatively similar district court judges whom former– Republican President Donald Trump and the recent pair of analogous Grand Old Party Senate majorities in the 115th and 116th Congress appointed had left the courts of appeals and the district courts “out of whack.” Lamentable were the numerous detrimental ways in which President Trump and these Republican Senate majorities attempted to undercut the appeals courts and district courts, which actually constitute the tribunals of last resort in …

A Brief History Of Judical Appointments From The Last 50 Years Through The Trump Administration, Donald F. Mcgahn Ii

William & Mary Law Review

Thank you so much for that kind introduction. I really appreciate the opportunity to be here today. I am going to talk about the confirmation process generally. There is no better place to talk about it than here. Let me begin with some numbers and statistics, before I turn to the main thrust of my talk, to give some context as to what recent Presidents have done with respect to judicial appointments. President Trump has appointed two Supreme Court Justices, Neil Gorsuch and Brett of Appeals; twenty-nine so far have been confirmed. The Senate Leader, Senator Mitch McConnell, has already …

Keep The Federal Courts Great, Carl Tobias

Law Faculty Publications

Ever since Donald Trump began running for President, he has incessantly vowed to “make the federal judiciary great again” by deliberately seating conservative, young, and capable judicial nominees, a project which Republican senators and their leader, Mitch McConnell (R-KY), have decidedly embraced and now vigorously implement. The chief executive and McConnell now constantly remind the American people of their monumental success in nominating and confirming aspirants to the federal courts. The Senate has expeditiously and aggressively confirmed two very conservative, young, and competent Supreme Court Justices and fifty-three analogous circuit jurists, all of whom Trump nominated and vigorously supported throughout …

(What We Talk About When We Talk About) Judicial Temperament, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Judicial temperament is simultaneously the thing we think all judges must have and the thing that no one can quite put a finger on. Extant accounts are scattered and thin, and either present a laundry list of desirable judicial qualities without articulating what (if anything) unifies the list or treat temperament as a fundamentally mysterious quality that a judge either does or does not have. Resting so much—selection, evaluation, discipline, even removal—on such an indeterminate concept is intellectually and practically intolerable. Polarized debates over Justice Kavanaugh’s fitness to sit on the Supreme Court made clear just how badly we need …

Proposed Reforms To Texas Judicial Selection: Panelist Remarks, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

I am going to set the stage by providing a little background about the various methods that States around the country use to select their judges. I am also going to remind us of many of the considerations that we like to think about when we are deciding which of these methods is best. And I am going to push upon you a new consideration that is sometimes not thought about in these discussions as well as share some data regarding this last consideration. But let’s start with some background about the selection methods.

There are basically four different ways …

Weighing Democracy And Judicial Legitimacy In Judicial Selection, Kenneth S. Klein

Faculty Scholarship

For over two centuries Americans have debated whether judges should be elected or appointed. While the explicitly-framed tension has been about the relative importance of judicial independence and judicial accountability in a democracy, the underlying issue has been about which structure better promotes the legitimacy of the judiciary. An institution has legitimacy when it enjoys diffuse support even for controversial decisions. Judicial legitimacy is in inherent tension with a judiciary in a democracy, since democracy implicitly assumes political elements to selection of all leaders (including judges), while judicial legitimacy is undermined by politics. The contemporary work on the relationship between …

Introduction: The Effects Of Selection Method On Public Officials, Clayton J. Masterman

Vanderbilt Law Review

State and local governments have long struggled to design optimal mechanisms for selecting public officials. Centuries of experimentation have left us with several techniques: election (partisan or otherwise), political appointment, or selection by some kind of technocratic commission. Despite our extensive experience with these systems, no consensus has emerged as to which system is best under what circumstances. Several questions remain unclear: What effect does selection method have on the quality of services that public officials provide? Does selection method systematically affect the ideological composition of officials? If so, does that effect matter? And what determines whether a jurisdiction adopts …

Judicial Reform As A Tug Of War: How Ideological Differences Between Politicians And The Bar Explain Attempts At Judicial Reform, Adam Bonica, Maya Sen

Vanderbilt Law Review

What predicts attempts at judicial reform? We develop a broad, generalizable framework that both explains and predicts attempts at judicial reform. Specifically, we explore the political tug of war created by the polarization between the bar and political actors, in tandem with existing judicial selection mechanisms. The more liberal the bar and the more conservative political actors, the greater the incentive political actors will have to introduce ideology into judicial selection. (And, vice versa, the more conservative the bar and the more liberal political actors, the greater incentive political actors will have to introduce ideology into judicial selection.) Understanding this …

Tailored Judicial Selection, Dmitry Bam

University of Arkansas at Little Rock Law Review

No abstract provided.

Living With Judicial Elections, Raymond J. Mckoski

University of Arkansas at Little Rock Law Review

No abstract provided.

Filling The Seventh Circuit Vacancies, Carl W. Tobias

Law Faculty Publications

In January 2016, President Barack Obama nominated Donald Schott and Myra Selby for empty judicial positions on the United States Court of Appeals for the Seventh Circuit. Schott is a very talented practitioner, who has efficaciously served as a well-respected partner of a major law firm for greater than thirty years. For instance, Schott has professionally worked on numerous complicated federal suits and a plethora of complex actions, many of which efforts concluded with alternative dispute resolution. Selby is concomitantly an exceptional lawyer, who has compiled a distinguished record in the public and private sectors. For example, the compelling prospect …

The Ideological Consequences Of Selection: A Nationwide Study Of The Methods Of Selecting Judges, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

One topic that has gone largely unexplored in the long debate over how best to select judges is whether there are any ideological consequences to employing one selection method versus another. The goal of this study is to assess whether certain methods of selection have resulted in judiciaries that skew to the left or right compared with the public at large in those states. In particular, I examine the ideological preferences of state appellate judges in all 50 states over a 20-year period (1990-2010) as measured by their relative affiliation with the Republican or Democratic Party through campaign contributions, voter …

Tailored Judicial Selection, Dmitry Bam

Faculty Publications

American states have experimented with different methods of judicial selection for two centuries, creating uniquely American models of selection, like judicial elections, rarely used throughout the rest of the world. But despite the wide range of selection methods in existence throughout the nation, neither the American people nor legal scholars have given much thought to tailoring the selection method to particular levels of the judiciary. To the contrary, the most common approach to judicial selection in the United States is what I call a unilocular, “a judge is a judge,” approach. For most of our nation’s history, all judges within …

A Conversation With Associate Justice Sonya Sotomayor, Justice Sonia Sotomayor

University of Colorado Law Review

No abstract provided.

Building A Bench: A Close Look At State Appellate Courts Constructed By The Respective Methods Of Judicial Selection, Diane M. Johnsen

San Diego Law Review

This Article analyzes detailed career-path and other demographic data to determine the extent to which the various judicial selection methods advance diverse candidates to the bench. The results show many similaritiesamong the mix of objective characteristics found on appellate benches across the states, regardless of selection method, but there are some important differences ... Part I discusses the history of judicial selection in the states and reviews the prior empirical and theoretical literature concerning judicial selection methods and the differences among judges produced by those selection methods, mainly with respect to gender, race, and localism. Part II identifies the data …

Filling Federal Court Vacancies In A Presidential Election Year, Carl W. Tobias

Law Faculty Publications

Scholars and politicians who closely track the federal judicial selection process appreciate that confirmations slow and ultimately halt over presidential election years, a phenomenon which has greater salience in a chief executive's last administration. The first section of this article canvasses selection in Barack Obama's tenure, ascertaining that Republicans cooperated little and contravened numerous traditions, especially after the party captured a majority. Thus, section two analyzes why the GOP did not collaborate and the consequences. Because that obstruction-which undercuts justice and regard for the coequal branches of government- will actually continue across 2016, the piece surveys devices, which could rectify …

Electing Justice Roush To The Supreme Court Of Virginia, Carl Tobias

Washington and Lee Law Review Online

In late April 2015, the Supreme Court of Virginia announced that Justice LeRoy F. Millette, Jr. would retire on July 31, 2015. Democratic Governor Terry McAuliffe expeditiously created an open process for tapping a worthy successor. At July’s conclusion, the Governor appointed Fairfax County Circuit Judge Jane Marum Roush, an experienced, consensus jurist. On a Sunday night, merely two days after Roush swore her oath of office, Republican General Assembly leaders proclaimed their caucuses’ intention to elect another individual, despite conceding that Roush was very qualified. During the August special session, this concerted GOP endeavor prompted a Republican senator to …

Confirming Circuit Judges In A Presidential Election Year, Carl W. Tobias

Law Faculty Publications

Over 2016, President Barack Obama tapped accomplished, mainstream candidates for seven of twelve federal appeals court vacancies. Nevertheless, the Senate Judiciary Committee has furnished a public hearing and vote for merely three nominees and did not conduct a hearing for any other prospect this year. 2016 concomitantly is a presidential election year in which appointments can be delayed and stopped—a conundrum that Justice Antonin Scalia’s Supreme Court vacancy exacerbates. Because appellate courts comprise tribunals of last resort for practically all cases and critically need each of their members to deliver justice, the appointments process merits scrutiny. The Essay first evaluates …

The Meaning Of The Constitution And The Selection Of Judges, Harold See

Law Faculty Scholarship

In the ongoing debate over the best method for choosing judges, the focus has been on the perceived drawbacks of judicial election without commensurate consideration of either the advantages of popular elections or the disadvantages of the commission system-usually styled the "Missouri plan" or "merit selection." One such consideration is the means of defining the judicial power.

Restoring The Civil Jury In A World Without Trials, Dmitry Bam

Faculty Publications

Early in this nation’s history, the civil jury was the most important institutional check on biased and corrupt judges. Recently, concerns about judicial bias, especially in elected state judiciaries, have intensified as new studies demonstrate the extent of that bias. But the jury of Hamilton, Madison, and Jefferson is nowhere to be found. In fact, the civil jury is virtually dead. It is used in less than 1% of all civil cases, and even when it makes a rare appearance, the jury’s powers have been significantly curtailed.

This article argues that we must reimagine the civil jury to match the …

Judicial Elections: The Case For Accountability, Jack Park

ConLawNOW

In this article, Jack Park defends the use of partisan elections as a method of selecting state court judges. He first frames the debate and describes its participants. The author then discusses the competing values that supporters and opponents of judicial elections advance. Finally, Mr. Park addresses the arguments for and against judicial elections, showing that, while they may not be a perfect method of selecting judges, neither are the alternatives.

How Far Out Of Step Is The Supreme Court Of The United States?, Brian Christopher Jones

Brian Christopher Jones

In The Wake Of White: How States Are Responding To Republican Party Of Minnesota V. White And How Judicial Elections Are Changing, Rachel Paine Caufield

Akron Law Review

The selection of state court judges in the United States has been the subject of vigorous debate. The controversy continues to build as some scholars contend that only the appointment of judges ensures the independence of the judiciary by insulating the judge from retaliation for unpopular decisions. Yet volumes of evidence unfold each day to reveal a judiciary under attack for making legal albeit unpopular decisions. While the cloak of a lifetime appointment with no effective method of removal does little to instill confidence in the impartiality of the judiciary, an election riddled with partisan rhetoric or one-sided attacks is …

Financing Ohio Supreme Court Elections 1992-2002: Campaign Finance And Judicial Selection, Nancy Marion, Rick Farmer, Todd Moore

Akron Law Review

The 2000 Ohio Supreme Court election renewed interest in judicial selection reform. The election was noted for interest group issue advocacy and undisclosed campaign spending. Advocacy groups spent millions attempting to unseat incumbent Justice Alice Robie Resnick, leaving the impression that Ohio justice is controlled by special interests and trial lawyers. The uses of negative campaigning and issue advocacy seemed to confirm suspicions that the Ohio Supreme Court had become dependent on campaign contributions from those with cases before the court. After the election, legal academics and public interest organizations began discussing changes to Ohio’s semi-partisan system. Legal scholarship focused …

Commission On The 21st Century Judiciary, Thomas J. Moyer

Akron Law Review

We approach the centennial of one of the most famous critiques of the legal profession with a new set of challenges facing the judiciary. When Roscoe Pound delineated “The Causes of Popular Dissatisfaction with the Administration of Justice” in a 1906 speech to the American Bar Association, he attributed the dissatisfaction to what citizens decried as “the necessarily mechanical operation of legal rules.”

The “arbitrary technicalities,” as Pound described them, are still a frustration for those who represent themselves in legal disputes or those untrained in the liberties protected by those technicalities. Pound also noted that the public is frustrated …

Introduction To The Judicial Symposium, Deborah L. Cook

Akron Law Review

I am pleased to introduce this Judicial Symposium issue of the Akron Law Review. Having twice been elected to Ohio’s Supreme Court, and also having survived the federal judicial-selection process, my “battle scars” alone might qualify me to comment on the Symposium’s broad topic—judicial selection. But my status as an alumna together with my office’s proximity—almost within wireless range of the law school—probably played a larger role than experience and perspective in securing this assignment. The submissions published here pertain to the foundation of the rule of law—public confidence in courts. Each contributor to the Symposium acknowledges the fundamental ideals …

Chooseyourjudges.Org: Treating Elected Judges As Politicians, Ric Simmons

Akron Law Review

In order to combat this problem of voter ignorance, I recently created a website designed to provide voters with information about judicial elections...Creating the website posed unique practical challenges, such as how to gather the information about the candidates and how to present it to the voter in a way that was meaningful and useful to a non-lawyer. But it also raised even more fundamental questions about the purpose of judicial elections and the role voters are meant to play in the process. This Article describes these challenges and questions, and then proposes my own initial solutions to them, in …

Why The Judicial Elections Debate Matters Less Than You Think: Retention As The Cornerstone Of Independence And Accountability, Layne S. Keele

Akron Law Review

This Article attempts to reframe the age-old judicial election arguments into a discussion about the importance of the retention decision, in order to draw out the areas of true disagreement in the judicial independence/judicial accountability debate. I argue that the core difficulties in balancing the desire for judicial independence with the desire for judicial accountability stem primarily from the judicial retention decision, regardless of whether retention is obtained by some form of reelection or through a form of reappointment. I then propose a two-term system for putting judges on state high courts, in which (1) high court judges sit for …

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.