July 01, 2017

Selecting Federal Judges in an Era of Political Polarization

Russell Wheeler

Reprinted with permission from Human Rights, 42:3, at 2–4. Copyright © 2017 American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.



The Senate majority’s refusal to consider Judge Merrick Garland’s March 16, 2016, nomination to fill the vacancy created by Justice Antonin Scalia’s death is 2016’s Exhibit A of the dysfunctional federal judicial appointment process. Most recent U.S. Supreme Court nominees have been confirmed and confirmed expeditiously, but the number of apparently party-line negative votes has increased. Anthony Kennedy (1988) received none, Clarence Thomas (1991) received 48. David Souter (1990), Ruth Ginsburg (1993), and Stephen Breyer (1994) saw a handful each, but the two W. Bush (John Roberts, 2005; Samuel Alito, 2006) and two Obama nominees (Sonia Sotomayor, 2009; Elena Kagan, 2010) received from 22 to 42 negative votes.

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