Is Our Dysfunctional Process for Filling Judicial Vacancies an Insoluble Problem?

Author(s): 
Russell Wheeler
Publication Date: 
January 24, 2013

ACS is pleased to distribute “Is Our Dysfunctional Process for Filling Judicial Vacancies an Insoluble Problem?,” an Issue Brief by Russell Wheeler, Visiting Fellow in Governance Studies at the Brookings Institution and President of the Governance Institute. 

In the Issue Brief, Wheeler documents the crisis affecting our federal courts: the high number of vacancies on the bench, the deteriorating conditions that make a federal judgeship less attractive to talented attorneys, and the delays in getting those nominated confirmed. Wheeler urges that the selection process, itself, should not become “an impediment that discourages good people from considering federal judicial service.” As he explains, “[t]he immediate need is a more aggressive nomination effort by the administration and finding ways to persuade senators in the minority that their long-term interest does not lie in opposing or foot dragging on nominees simply because they can and because they want payback for what they see as their counterparts’ obstructionism in earlier Senates.” 

Among the solutions Wheeler suggests to improve the federal judicial selection process are near-term fixes such as the White House’s publicizing the status of its negotiations with senators over possible nominees, and longer-term remedies, such as the creation of a bipartisan task force to propose changes that would be debated in the 2016 elections and adopted by the next administration and incoming 2017 Senate.


“Toward a More Perfect Union: A Progressive Blueprint for the Second Term” is a series of ACS Issue Briefs offering ideas and proposals that we hope the administration will consider in its second term to advance a vision consistent with the progressive themes President Obama raised in his second Inaugural Address. The series should also be useful for those in and outside the ACS network – to help inform and spark discussion and debate on an array of pressing public policy concerns. The series covers a wide range of issue areas, including immigration reform, campaign finance, climate change, criminal justice reform, and judicial nominations. To view the series, click here.