Judges Commons^™

Combating The Ninth Circuit Judicial Vacancy Crisis, Carl W. Tobias

Law Faculty Publications

When Donald Trump became President, the United States Court of Appeals for the Ninth Circuit had four judicial vacancies that the Administrative Office of the U.S. Courts (AO) identified as “judicial emergencies.” The court also faces a larger caseload than all the other regional circuits, and has frequently decided appeals the least swiftly. The 2016 election returns indicate that more confirmations will be necessary due to additional court members’ probable retirement or assumption of senior status during President Trump’s administration. Striking politicization could frustrate this effort, however. Soon after the inauguration, President Trump signed a novel executive order proscribing U.S. …

Judge Lawrence W. Kaplan And His Court Cases In Family Division, Court Of Common Pleas Of Allegheny County (1980-1990), Joel Fishman

Law Faculty Publications

In the last issue of the Pennsylvania Family Lawyer, I compiled a list of family law cases decided by Judge R. Stanton Wettick, Jr. for the decade of the 1980s when the Divorce Code was first introduced into the Commonwealth. The local court was a leader in deciding cases that set forth many of the principles that the appellate courts adopted as new law developed. In this article, I present the cases of Judge Lawrence Kaplan who served his entire judicial career in the Allegheny Court of Common Pleas from June 30, 1978 until his retirement on Augst 12, 1998 …

Confirming Judge Restrepo To The Third Circuit, Carl W. Tobias

Law Faculty Publications

From the moment that the Grand Old Party (GOP) won the Senate in November 2014, Republicans have directly and incessantly vowed to establish “regular order” in the upper chamber again. Lawmakers employed this phrase to depict the purported restoration of strictures that prevailed until Democrats subverted them. In January 2015, when the 114th Congress began, Senator Mitch McConnell (R-Ky.), the Majority Leader, proclaimed, “[w]e need to return to regular order,” while the legislator has dutifully recited that mantra ever since. Senator Charles Grassley (R-Iowa), the head of the Senate Judiciary Committee, espoused analogous concepts. Illustrative was his January 2015 pledge …

Confirming Supreme Court Justices In A Presidential Election Year, Carl W. Tobias

Law Faculty Publications

Justice Antonin Scalia’s death prompted United States Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chair Chuck Grassley (R-Iowa) to argue that the President to be inaugurated on January 20, 2017—not Barack Obama—must fill the empty Scalia post. Obama in turn expressed sympathy for the Justice’s family and friends, lauded his consummate public service, and pledged to nominate a replacement “in due time,” contending that eleven months remained in his administration for confirming a worthy successor. Obama admonished that the President had a constitutional duty to nominate a superlative aspirant to the vacancy, which must not have persisted for …

Filling The Texas Federal Court Vacancies, Carl W. Tobias

Law Faculty Publications

Texas confronts many federal appellate and district court openings, but the situation has reached crisis proportions. The state addresses two protracted U.S. Court of Appeals for the Fifth Circuit vacancies, which have lacked nominees for multiple years, and eleven open trial court seats, all but one classified as "judicial emergencies." This conundrum persists, although the Senate confirmed three jurists for Texas district vacancies in both 2014 and 2015 and President Barack Obama submitted well qualified, mainstream nominees on five empty posts in March 2016. Texas Republican Senators John Cornyn and Ted Cruz also failed to expeditiously provide those designees' "blue …

Recalibrating Judicial Renominations In The Trump Administration, Carl W. Tobias

Law Faculty Publications

Now that President Donald Trump has commenced the fifth month of his administration, federal courts experience 121 circuit and district court vacancies. These statistics indicate that Mr. Trump has a valuable opportunity to approve more judges than any new President. The protracted open judgeships detrimentally affect people and businesses engaged in federal court litigation, because they restrict the expeditious, inexpensive and equitable disposition of cases. Nevertheless, the White House has been treating crucial issues that mandate careful attention-specifically establishing a government, confirming a Supreme Court Justice, and keeping numerous campaign promises. How, accordingly, can President Trump fulfill these critical duties …

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 …

Nominate Judge Koh To The Ninth Circuit Again, Carl W. Tobias

Law Faculty Publications

During February 2016, President Barack Obama nominated United States District Judge Lucy Haeran Koh to a “judicial emergency” vacancy on the United States Court of Appeals for the Ninth Circuit. She has capably served over multiple years in the Northern District of California competently deciding numerous high-profile lawsuits, specifically regarding intellectual property. Accordingly, the President’s efforts to confirm her were unsurprising. However, 2016 was a presidential election year when judicial nominations traditionally slow and ultimately halt. This difficulty was exacerbated when Republicans consistently refused to implement any confirmation process for United States Court of Appeals for the District of Columbia …

Personal Reflections On The Honorable Robert R. Merhige, Jr.: A Judge, Mentor, And Friend, Mary Kelly Tate

Law Faculty Publications

Twenty-six years – half my lifetime – have passed since I joined Judge Merhige's court family as his law clerk. I attempt here to sketch my personal impressions, distilling what to me was most remarkable about Robert R. Merhige, Jr. Perhaps unsurprisingly, this dynamic man turned legendary judge – a man I revered from the moment I met him – is more vivid to me now than he was to my younger self.

Mercurial, energetic, and benevolently despotic, Judge Merhige was a man of extraordinary decency who cherished his vocation and the law. He was a World War II veteran …

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 …

Confirm Judge Koh For The Ninth Circuit, Carl W. Tobias

Law Faculty Publications

On February 25, 2016, President Barack Obama appointed United States District Court Judge Lucy Haeran Koh for a judicial emergency vacancy on the United States Court of Appeals for the Ninth Circuit. The jurist has served professionally for more than six years in the United States District Court for the Northern District of California, ably resolving major litigation. Thus, White House efforts to confirm her were unsurprising. Nevertheless, 2016 is a presidential election year when delay infuses many court appointments. That conundrum was exacerbated because the United States Senate Republican majority refused to even consider United States Court of Appeals …

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

Law Faculty Publications

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 …

A Demographic History Of Federal Judicial Appointments By Gender And Race: 1789-2016, Jonathan K. Stubbs

Law Faculty Publications

This article briefly surveys the constitutional and statutory foundation for the creation of the federal judiciary. It also furnishes data, by sex and race, of the appointment of federal judges to courts of general jurisdiction during each presidential administration from September 24, 1789, through April 11, 2016. Thus, Part I describes the pace of diversification of the federal judiciary. While data regarding other attributes of judges (such as their socioeconomic status) exist, extensive analysis of such characteristics falls outside the parameters of this preliminary analysis. Nonetheless, the Article notes in passing that, since 1989, during each presidential administration, the majority …

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 …

Feminist Justice: Review Of Sisters In Law: How Sandra Day O'Connor And Ruth Bader Ginsburg Went To The Supreme Court And Changed The World, By Linda Hirshman, Corinna Barrett Lain

Law Faculty Publications

Like most good books, Sisters in Law has a number of strengths and also a few weaknesses. In this review, I briefly reflect on both, then turn to what struck me most about the book, the thing I’m still thinking about and struggling with: what it means to be an elite. The good, the bad, and the ugly (truth)—here is my reaction to Sisters in Law.

Confirming Judges In The 2016 Senate Lame Duck Session, Carl W. Tobias

Law Faculty Publications

In this piece, Professor Carl Tobias descriptively scrutinizes the nomination and confirmation regimes throughout the administration of President Barack Obama. The article critically evaluates selection finding that persistent Republican Senate obstruction resulted in the greatest number of unoccupied posts for the longest duration, briefly moderated by the 2013 detonation of the “nuclear option,” which constricted filibusters. Nevertheless, the article contends when the Grand Old Party (GOP) attained a chamber majority, Republicans dramatically slowed the nomination and confirmation processes after January 2015. Therefore, openings surpassed ninety before Congress is scheduled to reassemble. Because this dilemma erodes rapid, inexpensive, and equitable disposition, …

Fixing The Federal Judicial Selection Process, Carl W. Tobias

Law Faculty Publications

Federal court selection is eviscerated. Across five years in Barack Obama’s presidency, the judiciary confronted some eighty-five vacancies because Republicans never agreed to prompt Senate consideration. Only when the Democratic majority ignited the “nuclear option,” a rare action that permitted cloture with fewer than sixty votes, did gridlock end. However, openings quickly grew after the Grand Old Party (GOP) captured an upper chamber majority, notwithstanding substantial pledges that it would supply “regular order” again. Over 2015, the GOP cooperated little, approving the fewest jurists since Dwight Eisenhower was President. However, selection might worsen. This year is a presidential election year, …

Confirm Myra Selby For The Seventh Circuit, Carl W. Tobias

Law Faculty Publications

President Barack Obama recently nominated Myra Selby for a vacancy on the U.S. Court of Appeals for the Seventh Circuit. The nominee is a highly accomplished lawyer who has compiled a distinguished record in both the public and private sectors. For example, Selby was the first African American to earn partnership in a substantial Indianapolis law firm, and both the first African American and the first female Justice to serve on the Indiana Supreme Court. Therefore, concerted White House attempts to confirm her were unsurprising. Nonetheless, with 2016 being a presidential election year, delays have inevitably infused appointments, which have …

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 …

Addressing Three Problems In Commentary On Catholics At The Supreme Court By Reference To Three Decades Of Catholic Bishops' Amicus Briefs, Kevin C. Walsh

Law Faculty Publications

Much commentary about Catholic Justices serving on the Supreme Court suffers from three related shortcomings: (1) episodic, one-case-at-a-time commentary; (2) asymmetric causal attributions resulting from inattention to cases in which Catholic Justices vote for outcomes opposite those advocated by the Catholic Bishops' Conference; and (3) inattention to broader jurisprudential and ideological factors. This article uses an overlooked resource to identify and counteract these shortcomings. It assesses the votes of the Justices-Catholic and non-Catholic alike-in the full set of cases from the Rehnquist Court and the Roberts Court (through June 2014) in which the United States Conference of Catholic Bishops filed …

Marriage Equality Comes To Virginia, Carl W. Tobias

Law Faculty Publications

Part I of this article chronicles marriage equality's rise and development nationally. It ascertains that challenges, which fos- tered the invalidation of marriage prohibitions that essentially govern nearly all jurisdictions, including Virginia, have triggered some controversy. Part II scrutinizes Judge Wright Allen's resolu- tion of the Virginia litigation and the United States Court of Ap- peals for the Fourth Circuit determination, which affirmed her ruling. This portion finds that the district jurist comprehensively assessed the relevant legal and factual issues when striking down the proscription while the Fourth Circuit appropriately upheld her opinion. Part III then derives lessons from the …

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.

Filling The Federal Appellate Court Vacancies, Carl W. Tobias

Law Faculty Publications

Multiple observers have criticized President Barack Obama’s discharge of his Article II constitutional responsibility to nominate and confirm federal judges. Senators have blamed the administration for slowly making nominations, liberals have contended that the executive appointed myriad candidates who are not sufficiently centrist, and conservatives have alleged that President Obama proffered many nominees who could become liberal judicial activists. Despite the sharp criticisms, the President has actually realized much success when nominating and confirming well qualified moderate jurists. President Obama has named more judges than Presidents George W. Bush and Bill Clinton had at this juncture in their tenure, while …

Filling The D.C. Circuit Vacancies, Carl W. Tobias

Law Faculty Publications

This Article's initial section posits a D.C. Circuit snapshot. Part II surveys all three prospects' confirmations. Part III assesses consequences of, and extracts lessons from, the specific processes recounted. Part IV proffers suggestions for improvement.

God, Civic Virtue, And The American Way: Reconstructing Engel, Corinna Barrett Lain

Law Faculty Publications

If ever a decision embodied the heroic, counter majoritarian function we romantically ascribe to judicial review, it was the 1962 decision that struck down school prayer-Engel v. Vitale. Engel provoked more outrage, more congres- sionalattemptsto overturnit, andmoreattackson theJusticesthanperhapsany other decision in Supreme Court history. Indeed, Engel's counter majoritarian narrative is so strong that scholars have largely assumed that the historical record supports our romanticized conception of the case.Itdoesnot. Usingprimary source materials, this Article reconstructs the story of Engel, then explores the implicationsof this reconstructednarrative. Engel is not the countermajoritarian case it seems, but recognizing that allows us to see Engel …

Marriage Equality Comes To Wisconsin, Carl W. Tobias

Law Faculty Publications

Marriage equality has swept America. Numerous federal judges, including Western District of Wisconsin Judge Barbara Crabb, have invalidated state proscriptions on same-sex marriage. This paper scrutinizes U.S. litigation, Crabb’s opinion, Seventh Circuit affirmance, and Supreme Court resolution. Finding that Wisconsin shows how to efficaciously institute full marriage equality, even as other states have not, the piece affords future suggestions.

Judicial Decisionmaking, Empathy, And The Limits Of Perception, Nicole Negowetti

Law Faculty Publications

No abstract provided.

Considering Patricia Millett For The D.C. Circuit, Carl W. Tobias

Law Faculty Publications

On June 4, Obama nominated three individuals: Patricia Millett, who has argued 32 Supreme Court appeals, Cornelia Pillard, who has won landmark High Court victories, and Robert Wilkins, who had served as a D.C. District Court judge for three years. The court’s allegedly smaller caseloads prompted Republicans to halt yes or no votes for all the nominees. But because well-qualified, moderate nominees warrant thorough consideration and final ballots, their Senate review deserves analysis, which this paper conducts by emphasizing Millett. It first surveys the nominee’s process and then shows how her evaluation concluded.

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 …

The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory, Kurt T. Lash

Law Faculty Publications

The Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This Article …