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12 Tex. A&M L. Rev. Arguendo 1 (2024-2025)

handle is hein.journals/tsamlw12 and id is 1 raw text is: Volume 12 Texas A&M Law Review Arguendo 2024 FILLING THE RED STATE FEDERAL JUDICIAL VACANCIES by: Carl Tobias* ABSTRACT District vacancies without nominees that plague red jurisdictions deserve emphasis in this Essay for several reasons. First, there are myriad district court jurists who trigger greater numbers of empty posts when they assume senior status, retire, or die, which triggers more issues. Legislators have created 677 active trial court positions, which dwarf the 179 active court of appeals judicial posts. The trial courts are tribunals of last resort for most cases; their numerous jurists are the only court members that many litigants encounter, and significantly more district court openings lack nominees. In contrast, appellate courts explicitly articulate considerable policy, include multiple states, and enunciate precedent, which strictly binds trial level judges in each circuit's purview. Vacancies' substantial quantity and protracted character impose serious complications. Extensive openings increase pressure on all jurists, court staff, and litigants by prolonging resolution. Litigants who file civil suits particularly feel the pressure of judicial vacancies. The prevalence and duration of many red state trial court vacancies without nominees essentially inflict adverse effects that may prevent judges from satisfying their duties to ensure expeditious, inexpensive, and equitable disposition under Federal Rule of Civil Procedure 1. Accordingly, that issue requires scrutiny, which this Essay undertakes. TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................................. 2 II. M ODERN FEDERAL JUDICIAL SELECTION ............................................................................... 5 III. JUDICIAL SELECTION IN THE BIDEN ADMINISTRATION........................................................... 7 A . D em ocrats ' Success in Blue States ................................................................................7 B . R ed State D ifficulties...................................................................................................... . 8 C. Recent Red State Successes in Reverse Chronological Order ....................................... 8 IV. CHALLENGES TO FILLING RED STATE VACANCIES ............................................................. 15 V. SUGGESTIONS FOR FELICITOUSLY FILLING RED STATE VACANCIES ...................................... 16 DOI: https://doi.org/10.37419/LR.V12.Arg.1 * Williams Chair in Law, University of Richmond School of Law. I wish to thank Margaret Sanner, Nick Kaye, Carley Ruival, and Jamie Wood for their valuable substantive and stylistic suggestions, Leslee Stone, Ashley Griffin, and Kristina Hunt for their exceptional word processing and attention to detail, Texas A&M Law Review Editor-in-Chief Janelle Briggs and Arguendo Editor Kyle Chrisman for their expeditious, careful, and flexible editing, for patience, and for sound advice, the University of Richmond Law Library Staff, especially Paul Birch, Alex Hutchings, Joyce Janto, and Roger Skalbeck, for their excellent research, as well as Russell Williams and the Hunton Andrews Kurth Summer Endowment Research Fund for their generous, continuing support. I derived the numbers, especially in notes 12, 105-07, and 109-12, provided for current and future vacancies with and lacking nominees and which arise in red or blue states or states with split delegations from the Administrative Office of the U.S. Courts official database on July 9, 2024, when the Texas A&M Law Review Arguendo posted this piece. Readers may update these numbers by consulting this database. I assume complete responsibility for any errors that remain in this piece. 1

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