Magazine article The Nation

Judging Judges

Magazine article The Nation

Judging Judges

Article excerpt

We have had our differences with Senador Daniel Patrick Moynihan [see the special issue, "Moynihan: The Conscience of a Neoconservative," September 22, 1979], but we have no trouble seconding Stephen Gillers's view that he has distinguished himself in one area--judicial selection. As Gillers wrote in The Nation, "In most places, lawyers who want to be judges become politically active. In New York, lawyers who want to be Federal trial judges complete a twelve-page questionnaire containing thirty-seven questions. An eleven-member panel screens applicants and recommends nominees to Senator Moynihan, who created the panel." Under an agreement with his Republican counterpart, Senator Alphonse D'Amato, Moynihan proposes one nominee for every four Federal judicial openings in the state.

In short, the Senator's judicial-selection process makes merit, rather than politics, the chief criterion. Judges Abraham Sofaer and Pierre Leval, whose handling of the recent Sharon and Westmoreland libel trials, respectively, drew high praise, were products of the Moynihan mill.

Senators, however, can only propose: the President nominates, and the evidence shows that in Washington, ideology reigns. During the remaining years of his incumbency, Reagan could appoint up to 115 Federal judges; he has already filled 165 vacancies on the district and appellate benches. That means that by 1988 more than half the Federal judiciary might be composed of Reagan appointess.

In the selection of virtually all of them, ideological fitness rather than judicial aptitude has been the primary consideration. …

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