No Time for Tension, No Room for Rancor
Bipartisan advisory commissions can aid in selection of federal judicial nominees
Posted Nov 1, 2008 11:35 PM CDT
By H. Thomas Wells Jr.
Promoting fair, impartial, effective and fully operational courts is a common core value of the legal profession. One way the bar can uphold this value and make a difference at the federal level is to promote steps to reduce friction in the process for nominating and confirming U.S. district and appellate court judges.
The next president and Senate have an opportunity to resolve this core issue of our justice system. For years, the process has suffered from delays in filling vacancies, political wrangling, confrontational partisanship and concerns over a lack of diversity on the bench.
The American Bar Association has long supported the use of bipartisan citizens’ commissions that review and recommend the nomination of judgeship applicants. Advisory panels are now used in eight states —with U.S. senators from both parties—to inform the recommendations for judicial nominees that senators traditionally provide to the president.
BUILDING TRUST AND CONSENSUS
By most accounts, advisory commissions open up the process for filling vacancies, focus on candidates’ nonpartisan qualifications, ensure smoother confirmations and shield the judiciary from political attacks that threaten their independence.
Commissions are no panacea, but they have been useful. They build community trust and consensus by adopting a more transparent method of soliciting candidates, and by reviewing applicants based on qualities such as professional competence, integrity and judicial temperament. They can help reduce partisan rancor and subsequent confirmation delay. Bipartisan advisory commissions are patently constitutional. The nomination choice remains with the president. The advice and consent role remains with the Senate.
At the 2008 ABA Annual Meeting in August, the House of Delegates unanimously reaffirmed the association’s support for bipartisan advisory commissions and adopted related recommendations. The policy was developed by its primary sponsor, the Standing Committee on Federal Judicial Improvements, with assistance from the American Judicature Society. It was co-sponsored by two dozen ABA sections and committees, federal bar and judiciary organizations, and women’s and ethnic bar groups. It offers four approaches that could lead to faster, less contentious federal judicial nominations and confirmations.
The recommendation for advisory commissions aims to bridge the partisan divide that has occurred often with federal judicial nominations. The ABA prescribes no particular procedures to follow in establishing or operating the panels, as this is best left to the senators themselves. But the policy encourages participation from a wide range of each state’s legal and nonlegal communities.
The ABA further suggests that the president consult with the Senate leadership of both parties and home-state senators before deciding on nominees. Far from compromising the president’s authority to nominate judges, this would serve administrations well by helping to avoid battles whose costs outweigh their benefits to the president, Senate, nominees and the courts on which they may serve.
The policy’s final two suggestions support ways to streamline the selection process and ensure that the federal courts are at full strength. First, it calls on judges who plan to leave the bench or take senior status to announce their intentions well in advance. Many already provide such notice, following the U.S. Judicial Conference’s suggestion that they do so 12 months before their vacancy begins.
Second, while prescribing no timetables, the policy urges the president and Senate to act promptly to fill vacancies. Here, bipartisan advisory commissions can be useful, because the extra screening they provide and consensus they build can help speed nominations and confirmations. Nominees identified by commissions have an especially strong claim for expedited consideration. Prompt Senate review also promotes fairness to nominees, who too often languish while waiting months or even years for an up-or-down vote.
As we anticipate new leadership in Washington, it’s time to reduce the all-too-frequent political tugs of war and improve the way we select federal judges for lifetime appointments. The public is best served by an open, thoughtful, bipartisan and civil process.