Emory Law Journal

ELJ OnlineVolume 65
Essays

Fixing the Federal Judicial Selection Process

Carl Tobias | 65 Emory L.J. Online 2051 (2016)

Federal court selection is eviscerated. Across five years in Barack Obama's presidency, the judiciary confronted some eighty-five vacancies because Republicans never agreed to prompt Senate consideration. Over 2015, the GOP cooperated little, approving the fewest jurists since Dwight Eisenhower was President. However, selection might worsen. This year is a presidential election year, a period in which confirmations traditionally slow to a halt, and a predicament that controversy regarding Justice Antonin Scalia's High Court vacancy exacerbates. At the next inauguration, the bench may experience 100 unfilled circuit and trial level positions. These concerns demonstrate that the broken appointments system requires permanent improvement. This survey evaluates confirmations during President Obama's tenure, detecting that Republicans have plumbed new depths for obstruction. Because this recalcitrance undermines judicial selection, the delivery of justice and respect for the coequal branches of government, the analysis proffers multiple long-term solutions, notably a bipartisan judiciary, which could enhance the process.

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Truthiness and the Marble Palace

Chad M. Oldfather, Todd C. Peppers | 65 Emory L.J. Online 2001 (2016)

Tucked inside the title page of David Lat’s Supreme Ambitions, just after a note giving credit for the cover design and before the copyright notice, sits a standard disclaimer of the sort that appears in all novels: ”This is a work of fiction. Names, characters, places, and events either are the products of the author’s imagination or are used fictitiously. Any resemblance to actual persons, living or dead, events or locales is entirely coincidental.” These may be the most truly fictional words in the entire book. Supreme Ambitions' observations about judging, clerking, prestige and the culture of elite law schools likewise reflect core truths, albeit via storylines and characters that are often exaggerated almost to the point of caricature. The result is a strong form of what Stephen Colbert calls ”truthiness.”

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A New Threat to the Viability of Campaign Contribution Limits

Brent Ferguson | 65 Emory L.J. Online 2020 (2016)

In July, the Wisconsin Supreme Court held that it violates the First Amendment to prevent political candidates from coordinating with outside spending groups like Super PACs if the groups' ads do not expressly advocate the election or defeat of a candidate. The decision is erroneous under federal precedent and fundamentally misunderstands the Supreme Court's holdings distinguishing between independent spending and spending coordinated with a candidate. Wisconsin's regulatory scheme will be largely inoperable for the time being: Contribution limits will be fairly meaningless, at least for sophisticated actors who seek to circumvent them. And the logic of the decision leads to the conclusion that candidates have the constitutional right to set up campaign accounts that may accept unlimited contributions, so long as that money is not used for express advocacy.

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