Judges Commons^™

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 …

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

Law Faculty Publications

No abstract provided.

Senate Gridlock And Federal Judicial Selection, Carl W. Tobias

Law Faculty Publications

One crucial locus of gridlock is appointments to the United States Courts of Appeals, which have grown extremely contentious, as the circuits resolve disputes about controversial issues and can effectively be tribunals of last resort for designated areas. Continuous Republican and Democratic charges, recriminations, and divisiveness have roiled the process for decades. The bench constitutes 179 judgeships; however, seventeen remained vacant at President Barack Obama's second inauguration notwithstanding his pledge to end the "confirmation wars" by assiduously consulting senators. Laboring without ten percent of the appellate court members subverts prompt, inexpensive and fair case disposition and undermines citizen respect for …

Tribute To Chief Justice Harry L. Carrico, John G. Douglass

Law Faculty Publications

An insightful personal perspective of Chief Justice Harry L. Carrico by Professor John G. Douglass.

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 …

Tips For Capturing 2014 Federal Court Clerkships, Carl W. Tobias

Law Faculty Publications

Now is a perfect moment for analyzing 2014 clerkships because law students across the country have completed their productive summer employment and are poised to commence their final year. Below are ideas which could help aspirants secure those coveted positions that start during next August.

Salvaging The 2013 Federal Law Clerk Hiring Season, Carl W. Tobias

Law Faculty Publications

Ten years ago, the judiciary instituted the Federal Law Clerk Hiring Plan, an employment system meant to regularize hiring in which most circuit and district court jurists voluntarily participated. Throughout the succeeding decade, this process operated effectively for innumerable trial judges, but functioned less well for appellate jurists. In early 2013, the U.S. Court of Appeals for the District of Columbia Circuit revealed that all its members "will hire law clerks at such times as each individual judge determines to be appropriate," concomitantly explaining "the plan is [apparently] no longer working." With these statements, the D.C. Circuit explicitly acknowledged what …

Justifying Diversity In The Federal Judiciary, Carl W. Tobias

Law Faculty Publications

This Essay thus scrutinizes Obama’s judicial selection effort, which confirms many ideas that Scherer espouses while showing how political deficiencies in the modern selection process erode diversity and legitimacy, and perhaps Scherer’s provocative solution. This response ultimately discusses some promising measures beyond Scherer’s recommendation that could enhance diversity and legitimacy in light of the threat that politicization poses

Saluting Judge Philip Pro's Quarter Century Of Nevada District Service, Carl W. Tobias

Law Faculty Publications

United States District Judge Philip M. Pro recently assumed senior status after more than two dozen years of exemplary service-five as chief judge-on the U.S. District Court for the District of Nevada, the federal trial court that serves the entire state of Nevada. Everyone who knows Judge Pro understands that senior status will not mean semi-retirement for him because he will continue devoting his tremendous energy to assuring that the District of Nevada promptly, inexpensively, and fairly resolves the myriad challenging cases on its docket.

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.

Response To Reasonable Expectations In Sociocultural Context, David G. Epstein

Law Faculty Publications

The Article starts 6 (and ends)7 with the premise that contract law should enforce the reasonable expectations of the parties. This is a hard premise to challenge.8 And an even harder premise to apply.9 The Article recognizes the two problems with applying this premise: (1) how does a court decide what expectations are “reasonable,”10 and (2) what does a court do when the contracting parties have different reasonable expectations.11 The Article then uses two cases to illustrate how “sociocultural dissonance between a judge and contracting party”12 exacerbates these problems.

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

Law Faculty Publications

No abstract provided.

Judge Thompson And The Appellate Court Confirmation Process, Carl W. Tobias

Law Faculty Publications

Judge 0. Rogeriee Thompson's appointment to the United States Court of Appeals for the First Circuit was an historic moment, as she became the tribunal's first African American member. The Senate confirmed her in five months on a 98-0 vote, more expeditiously than any of President Barack Obama's other appellate nominees. Indeed, Fourth Circuit nominee Judge Albert Diaz waited thirteen months for approval. The slow pace of judicial confirmation demonstrates that the charges and recriminations, the partisanship and the serial paybacks, which have infused appointments for two decades, remain. Judge Thompson's confirmation, accordingly, deserves celebration and recounting. It both illuminates …

Filling The Fourth Circuit Vacancies, Carl W. Tobias

Law Faculty Publications

Federal judicial selection has become increasingly controversial. Allegations and recriminations, partisan division, and incessant paybacks have accompanied the appeals court appointments process for decades. These phenomena were pervasive in the administration of President George W. Bush as well as in nominations and confirmations to the United States Court of Appeals for the Fourth Circuit, particularly with respect to judgeships assigned to North Carolina.

The protracted vacancies have eroded the Fourth Circuit's delivery of justice, as operating without the fifteen circuit judges whom Congress authorized has exacted a toll. Across two and a half recent years, the court functioned absent a …

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

Law Faculty Publications

No abstract provided.

Improving Federal Judicial Selection, Carl W. Tobias

Law Faculty Publications

Review of Benjamin Wittes, Confirmation Wars: Preserving Independent Courts in Angry Times (2006).

Postpartisan Federal Judicial Selection, Carl W. Tobias

Law Faculty Publications

The problem of numerous, persistent vacancies in the federal judiciary continues to undermine expeditious, inexpensive, and fair case resolution. As the Obama administration is still in its early stages, the process for nominating and securing the confirmation of federal judges merits consideration. This Essay chronicles the origins and development of the appointments conundrum. Although enhanced federal jurisdiction and growing caseloads are partially to blame, partisan politics has also prevented swift nomination and confirmation for over twenty years. The Essay then describes the processes employed by the Obama administration during its nascency. Finally, the Essay offers suggestions to facilitate the judicial …

Diversity And The Federal Bench, Carl W. Tobias

Law Faculty Publications

Justice Sonia Sotomayor's appointment was historic. She is the first Latina Supreme Court member and President Barack Obama's initial appointment. Her confirmation is the quintessential example of his commitment to increasing ethnic and gender diversity in the judiciary; it epitomizes how the administration has nominated and appointed people of color and women to the appellate and district courts. Enhancing diversity honors valuable goals. Selection across a presidency's initial fifteen months also creates the tone. These ideas suggest that the nascent administration's judicial selection merits evaluation, which this paper conducts. Part I briefly assesses modern chief executives' divergent records in naming …

Fourth Circuit Judicial Appointments, Carl W. Tobias

Law Faculty Publications

Fourth Circuit judicial selection deserves an examination, which this Article undertakes. The first part investigates the background of the Fourth Circuit appointments process, emphasizing relevant developments throughout the Bush Administration. The second part descriptively and critically assesses nomination and confirmation in the Obama Administration. The third part derives lessons from the Fourth Circuit selection efforts by comparing them with Obama's national selection efforts and processes in other administrations. For example, all four Obama nominees are ethnic minorities or women and were sitting judges when nominated, and one is younger than fifty-five. Accordingly, their confirmation increases the appeals court's ethnic and …

Unmasking Judicial Extremism, Carl W. Tobias

Law Faculty Publications

Review of Cass R. Sunstein, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (2005)

Concurrence, Posner-Style: Ten Ways To Look At The Concurring Opinions Of Judge Richard A. Posner, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Reconsidering Virginia Judicial Selection, Carl W. Tobias

Law Faculty Publications

The 2008 Virginia General Assembly adjourned this summer without electing judges to vacancies on the State Corporation Commission (the "Commission" or "SCC"), the Supreme Court of Virginia, and numerous circuit courts. Thus, Democratic Governor Tim Kaine recently appointed individuals to fill these openings. Although the jurists whom the Governor appointed seem very well-qualified, the judges may only serve for five months, unless the 2009 General Assembly elects them. The 2008 Assembly's failure to elect judges for these vacancies demonstrates that the selection process is ineffective, and perhaps broken, as this development has eroded the delivery of justice and may have …

Dear President Bush: Leaving A Legacy On The Federal Bench, Carl W. Tobias

Law Faculty Publications

The appointments of Chief Justice John Roberts and Justice Samuel Alito were milestones in your stated quest to transform the courts. Appreciating that a critical duty assigned to the president by the Constitution is nominating and, with Senate advice and consent, appointing judges, you vowed to recommend "strict constructionists." Selection has enhanced importance, given modern perceptions that judges are essentially the final arbiters of societal disputes, including such questions as terrorism and affirmative action. The Hamdan v. Rumsfeld and Grutter v. Bollinger opinions as well as the public school desegregation and Schiavo litigation trenchantly illuminate those notions.

You can still …

St. George Tucker, William Hamilton Bryson

Law Faculty Publications

An encyclopedia entry on St. George Tucker's practice at the bar and how his distinction as a lawyer led to his appointment to the ,General Court of Virginia on January 4, 1788. On January 6, 1804, he was elevated to the Court of Appeals of Virginia.

Judge Posner's Dissenting Judicial Oeuvre And The Aesthetics Of Canonicity, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

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 …

Fourth Circuit Publication Practices, Carl W. Tobias

Law Faculty Publications

Certain publication practices, especially dependence on issuing unpublished opinions, are one major response of federal courts to the increasing number of appeals. Few observers have assessed how specific tribunals employ these practices, although a recent study elucidates them. The Commission on Structural Alternatives for the Federal Courts of Appeals (Commission) gathered much useful data, which have remained strikingly constant, on each court. Because Fourth Circuit's publication practices and reliance on unpublished decisions allow the court to manage a large docket and suggest that it may not enunciate the common law, this Article scrutinizes those practices.

The Article first describes the …

The Federal Appellate Court Appointments Conundrum,, Carl W. Tobias

Law Faculty Publications

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 …

Bork Was The Beginning: Constitutional Moralism And The Politics Of Judicial Selection, Gary L. Mcdowell

Law Faculty Publications

On October 23, 1987, the United States Senate committed what many considered then-and what many still consider today-to be an unforgivable political and constitutional sin. Wielding its power to advise and consent on nominations to the Supreme Court of the United States, the upper house voted 58-42 not to confirm Judge Robert H. Bork. The vote, which was the largest margin of defeat in history for a nominee to the Supreme Court, concluded one of the most tumultuous political battles in the history of the republic, a battle that would transform the process of judicial selection for years to come.

Appellate Court Appointments In The Second Bush Administration, Carl W. Tobias

Law Faculty Publications

Prof. Tobias discusses the renominations by President George W. Bush of twelve candidates for the United States courts of appeals, all previously opposed by Democratic senators during the President's initial term. Likely reasons and predicted consequences for these renominations are offered.