Congress Broke It, Now Congress Must Fix It

Judicature, November/December 2012 | Go to article overview
Save to active project

Congress Broke It, Now Congress Must Fix It


The broken judicial confirmation process and eroding public confidence in the impartiality of the courts must be addressed by all three branches of government.

Now that elections are over there is an opportunity for our elected representatives to reflect and set a new agenda that responds to the concerns of the electorate. In terms of the judiciary, all three branches of government need to acknowledge past shortcomings and make a commitment to improving the federal courts. Three things must happen. First, the appointment and confirmation process for federal judges must be fixed. Second, Congress must fix judicial compensation. Finally, the federal courts must fix the perception that the decisions of the judiciary are merely the decisions of warring political judicial forces.

Appointment and confirmation Process

President Obama made many good judicial appointments during his first term. When he first took office, the President moved cautiously. "The White House in that first year did not want to nominate candidates who would generate rancorous disputes over social issues that would further polarize the Senate," Gregory B. Craig, Mr. Obama's first White House counsel, told The New York Times.1 "We were looking for mainstream, noncontroversial candidates to nominate." While there was criticism of President Obama for suggesting too few nominees in 2009, the administration subsequently picked up the pace slightly. To his credit, President Obama has put emphasis on diversity-he has appointed a higher percentage of women and people of color than any predecessor. But as President Obama enters a new term, there is simply no excuse not to move with dispatch in making judicial appointments. The federal courts have a consistent vacancy factor of about 10 percent. Empty judicial chambers do not resolve cases. Business and government often use vacancy factors to keep costs down. But that approach when applied to the federal courts may actually significantly raise the cost of justice to litigants.

For the past decade, Republican and Democratic accusations, countercharges and paybacks have derailed or delayed judicial appointments. When President George W. Bush took office, some people worried that he would begin packing the federal judiciary with ultraconservative jurists. Prominent law professors such as Laurence Tribe of Harvard and Marcia Greenberger of the National Women's Law Center counseled Senate Democrats "to scrutinize judicial nominees more closely than ever." They said "there was no obligation to confirm someone just because they are scholarly or erudite."2

Senate Democrats who were in the minority did use the filibuster to prevent the confirmation of conservative appellate nominees and at one point ten nominees for the appellate courts were filibustered. Republicans threatened to change the Senate rules by using what Senator Trent Lott termed the "nuclear option," which would have eliminated the use of the filibuster to prevent judicial confirmation votes. A temporary compromise was reached and many although not all of the nominees were voted on. And then two things happened. The Republicans lost control of the Senate and the Presidency. Suddenly there was again "no obligation to confrm someone just because they are scholarly or erudite." This time, however, it was Senate Republicans who thought that way.

Just 5.1 percent of uncontroversial circuit court nominees had to wait 200 or more days to be confirmed by the Senate under President Ronald Reagan. Under George H. W. Bush, it was 7.3 percent; Bill Clinton, 22.2 percent; George W. Bush, 35.7 percent. Under Obama it is 63.6 percent; this is simply unacceptable. Rather than view nominees on their merits, too often the debate is stymied by the grudge. Miguel Estrada was filibustered by Democrats, so Republican Senators filibustered Goodwin Liu. The responsibility to give advice and consent to judicial nominees is profoundly important and for exactly that reason both political parties must commit to vigorous debate followed by a vote.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Congress Broke It, Now Congress Must Fix It
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?