If you are an American citizen with a federal case or controversy, knock as you might, no one is home at your federal courthouse. News reports over the past months sketch the gridlock holding up President Bush’s judicial appointments, resulting in a record 104 vacancies on the federal bench to date. Chief Justice Rehnquist characterizes these empty seats as “the most immediate problem we face in the federal judiciary”. But the question is why?
The short answer is politics. Our Constitution dictates that federal judges are to be nominated by the President, but confirmed with the advice and consent of the Senate. This is where the monkey business begins. Students across America are taught that of our government’s three, separate but interrelated branches, federal courts are non-political by virtue of the Constitutional mandate of life tenure. Sadly, the federal judiciary is not above the fray of political wrangling, and citizens suffer for it. By what criteria does the Senate consent to nominees, and in what ways can it vitiate a President’s choice?
Since Eisenhower’s administration, the American Bar Association has had a traditional, quasi-official (through extra-constitutional) role as a screener of nominees. The President submits the names and biographies of his choices to an espoused, bipartisan ABA committee, which (usually in 2 months or so) then rates the would-be judges’ judicial temperament and integrity into three categories, “well qualified”, “qualified”, or “not qualified”. Some of you will recall that last March, in a controversial move, President Bush broke from that tradition, and removed the ABA from the review process. Resilient, the ABA’s status was restored when the Democrats regained the majority and Senator Leahy vowed not to conduct hearings until the ABA ratings were submitted.
In practice, armed with those ABA rankings, the Judiciary Subcommittee evaluates the nominees’ ideological bent. They shouldn’t, but the Senators to look at the political leanings of the nominees. Some Republican stallers invoke fear of “judicial activism”, while Democratic obstructionists insist on a strict faith in “access to the courts” for the populace. These are keywords for political profiling. The result of this misplaced ideological tug-of-war is that the federal judiciary is running a skeleton staff. The Judicial Conference has identified 24 courts that are in a state of “Judicial emergency”, where judges are juggling upwards of 700 filings, with seats around them vacant for 18 months or more.
Another appointment tradition, which contributes to the vacancy problem, is known as the “blue slip” rule. It affords the two senators from the nominee’s home state an effective block against the appointment, with no explanation. Of course, there is no Constitutional mandate for such a veto power, artfully termed “senatorial courtesy”, but this is the realm of tradition, not rule of law. In an effort to work within the admittedly flawed political scheme of judicial nominations, former President Bill Clinton negotiated with senators that for every three nominees he put forth, the home Senators could offer, up to one. Perhaps this is why Clinton’s administration seated the second highest number of federal judges (second only to Ronald Reagan who had a Republican Congress behind his choices) despite bitter partisan sentiment.
President Bush has put forth 21 Court of Appeals nominees and 28 District Court nominees, but to date, only 4 have been confirmed. Pitifully, only 9 of the 50 have even gotten their subcommittee hearing. The road ahead is long indeed. Though the Constitution does not bar the Senate from waiting on the ABA reports, Bush’s instinct was right to dispense with ABA ratings. Arguably, their review process is subjective, and unquestionably, it drags out the confirmation process. The president has a lofty goal of filling the federal bench by next year, but the Senate will thwart this plan for they are still raw about W’s attempt to oust the ABA.
While life tenure does send up a red flag, cautioning a close look at a federal judicial nominee’s ability and fairness, it does not justify the sluggish pace of appointments. More often than not, the nominees are good men and women who love and respect the law. Both Republicans and Democrats are to blame for holding up the workings of the government‘s third branch. As American citizens, we should all be concerned about the smooth workings of our courts. Vacancies in the hundreds hurt everyone. Currently, the political left, by means of its obstructionist Senators, is authoring its own demise. Ironically, groups like the ACLU, who oppose seating Rule of Law nominees, will have a hard time bringing their Constitutional challenges of the Patriot Act precisely because they have kept seats empty. But beyond this, lest we forget, the real victims are the citizens who legitimately seek the federal forum for their cases and controversies, who find no one home at the courthouse.
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