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Numerous observers of modern federal judicial selection believe that the process is in serious disrepair, if not broken. Delayed nominee consideration, accusations and countercharges between Democrats and Republicans, as well as “paybacks,” have punctuated appointments since 1990. One-tenth of the 179 active circuit judgeships, which the U.S. Congress has authorized, are perennially vacant, and substantial numbers can remain open for years. Judicial confirmations have grown increasingly rancorous since mid-2003, while the selection process ground to a complete halt this year. When President George W. Bush resorted to the questionable device of recess appointments in naming controversial individuals to the federal appeals courts, Democratic senators responded by declining to move any nominees whom the chief executive had submitted. The announcement on May 18 that the White House and Senate Democrats had reached an agreement on federal judicial selection, therefore, constituted a welcome respite, albeit not a permanent solution. Under the compromise developed, the chief executive pledged that he would make no additional recess appointments to the federal bench during 2004. The Democrats concomitantly agreed that the Senate would process 1st, 2d, 3d and 8th U.S. circuit courts of appeals nominees as well as 20 district court nominees characterized as “noncontroversial” by the July 4 recess. Conspicuously absent were more than a dozen individuals, such as recess appointees Charles Pickering and William Pryor, whom the chief executive has nominated to half of the regional circuits. Both the president and Democratic senators deserve credit for breaking this impasse, a conundrum that jeopardized public respect for all three branches of the federal government. Newspaper accounts were quick to draw conclusions about which political party won, with most reports asserting that Democrats got the better of the deal. For example, the accord means that certain Republican nominees-including quite a few whom Democratic senators have filibustered because they are controversial-may never secure appointment, particularly if Democrats win the White House or increase their Senate numbers this November. Moreover, Democrats have not abjured deployment of filibusters to block nominees whom they oppose, even though the chief executive has capitulated on recess appointments, both of which their critics find unconstitutional. Democrats have correspondingly undercut as a salient campaign issue the notion that they are obstructionists. For a time, the public will also be spared the bitter partisan infighting that has suffused appointments for more than a decade. However, Republicans will be able to confirm 25 additional nominees, virtually all whom Bush has recommended, except those deemed the most ideologically conservative. The principal beneficiaries of the recently struck compromise will apparently be the federal courts, lawyers and parties who litigate in them, and the American people. Once the Senate has processed all of the nominees who are included in the agreement, the federal judiciary will be closer to full strength than at any time in the last 13 years. This phenomenon will decrease pressure on the strapped judicial resources of the federal bench, while the courts will be able to expedite resolution of the often-delayed appellate caseload and the usually backlogged trial court civil docket. Only a temporary solution The May 18 compromise is not perfect. For instance, it leaves some appeals courts, namely the District of Columbia, 4th and 6th circuits, without 20% of their authorized judicial complements. Should citizens view the accord as “horse-trading” of judgeships, this perception might concomitantly erode public regard for the process and for the individuals appointed. Moreover, the agreement comprises only temporary relief for a system that many observers consider dysfunctional, and perhaps beyond lasting remediation. These critics include senators on both sides of the aisle, Democrats and Republicans, executive branch officials in current and previous administrations, and federal judges. For now, the May 18 compromise on federal judicial selection represents a creative, bipartisan effort that advances the public interest. The agreement promises to benefit the federal judiciary, attorneys, litigants and the United States by placing the bench nearer to full capacity than it has been at any time since 1991. Individuals and entities concerned about the troubled state of contemporary judicial appointments must now rededicate themselves to discovering efficacious permanent solutions for this vexing difficulty posed by modern government. Long-term relief would enable appellate courts to facilitate disposition of mounting appeals and district courts to resolve civil filings more expeditiously. Carl W. Tobias is the Williams Professor of Law at the University of Richmond School of Law.

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