Congress Broke It, Now Congress Must Fix It

Judicature, November/December 2012 | Go to article overview

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. …

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