Article By: Carl Tobias
47 PEPP. L. REV. 115 (2019)
President Donald Trump repeatedly argues that appellate court appointments constitute his major success. The President and the United States Senate Republican Party majority have established records by approving fifty very conservative, young, and capable appellate court jurists. However, their confirmations have exacted a toll, particularly from the many federal district courts which address seventy-nine unfilled positions in 677 judicial posts.
One constructive illustration has been the three Illinois tribunals which confront five pressing openings. The Administrative Office of the United States Courts classifies three as “emergencies,” because the vacant seats have been protracted and involve substantial caseloads. Despite this circumstance, Trump failed to nominate any Illinois district court candidate before June 2018, while the U.S. Senate only appointed a nominee more than one year later. All openings lacked nominees until recently, mostly because the White House did not resend the Senate three nominees whom Trump had proposed last year until May 2019.
District judges comprise the Illinois federal justice regime’s “workhorses” and resolve large dockets, while the ample vacancies pressure Illinois district courts and litigants, conditions that epitomize the nation. Thus, the efforts to fill the abundant openings by the President, the Senate, and Democratic lawmakers who represent Illinois—Senator Richard Durbin, the Minority Whip, and Senator Tammy Duckworth—necessitate assessment.
Part II of this Article recounts the background of judicial selection, emphasizing the contemporary problem. Part III surveys the practices which Trump and the chamber deploy, detecting that both stress the rapid appointment of conservative, young, and competent appellate court jurists but downplay district level vacancies. He also limits venerable customs which presidents have implemented. The section then evaluates confirmation procedures, finding that the Judiciary Committee deemphasizes important traditions, especially “blue slips”—which stop nominee consideration, unless both home state senators approve candidates—and hearings’ careful arrangement that prior committees had rigorously applied.
Part IV considers numerous selection practices’ effects, determining that until November 2019 there were more open district court slots than upon Trump’s inauguration. The emphasis on speedily appointing conservative appellate court judges and deviations from important precedents that had long effectively served White Houses, Senates, and federal courts are undercutting both discharge of the President’s constitutional duties to nominate and confirm accomplished district court judges and fulfillment of the Senate’s constitutional responsibilities to advise and consent on nominees. The massive number and prolonged nature of vacancies concomitantly undermine the judiciary’s responsibility to promptly, economically, and fairly treat significant numbers of filings. However, assiduous executive branch consultation with the Illinois senators, who astutely collaborated, directly fostered the expeditious appointment of two preeminent Seventh Circuit jurists and the careful nomination, although rather lengthy confirmation, of three able, moderate district court nominees.
The last section proffers suggestions for the future. Now that President Trump has renominated those strong, mainstream district nominees—who easily won confirmation—he should meaningfully consult with the Illinois senators and revitalize numbers of efficacious concepts from which presidents and senators have gleaned much benefit, to fill every Illinois vacancy. The Senate ought to revive venerable measures, robust hearings, rigorous committee discussions, and vigorous confirmation debates. These efforts and successfully filling the Illinois empty district positions could supply instructive guidance for judicial selection across the United States, particularly by showing how ample White House consultation of home state senators and careful collaboration by these politicians can promote the smooth nomination and appointment of highly qualified mainstream appeals court and district court jurists.