What the President Should Look for in a Judicial Nominee

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Presumptive Democratic presidential nominee Barack Obama says he wants judicial nominees to have empathy. Presumptive Repubican presidential Nominee John McCain says he does not want activist judges.

But what that all means and what the presidential candidates should really be saying about judicial selection was the subject of a lively panel discussion this afternoon sponsored by the Judicial Division.

The panel, moderated by New York Times U.S. Supreme Court correspondent Linda Greenhouse, featured former U.S. Solicitor General Kenneth Starr, now dean of Pepperdine University School of Law; Princeton University law and public affairs scholar Christopher L. Eisgruber, and University of Maryland law professor Sherrilyn Ifill, each of whom had their own firmly held opinions about whether the current judicial nomination process works and how it should be changed.

Greenhouse kicked off the discussion with the understated observation that no one is happy with the current state of judicial selection. Presidents see a given senator’s objections to well qualified candidates as obstructionist; senators see confirmation hearings a frustrating game of cat and mouse, an unseemly game of gotcha. “Surely there is a better way?” Greenhouse said.

While there was no consensus among the panelists about what that better way is, they all offered suggestions.

Starr believes the presidential nominees’ discussion over judicial candidates should be focused on three questions:

• What is the appropriate role of the court?
• Should the Senate be deferential to the president’s choices for the judiciary?
• What role should the ABA continue to play in the judicial selection process?

“It is a controversial role, but it goes back a long way,” Starr said. “When a U.S. president decides not to employ the services of the ABA. and the Senate wants it, should the ABA continue? If so, how can the process be improved?”

Eisgruber placed much of the blame for the state of judicial selection on presidential politics. “If you want to change the nomination process, you have to change the confirmation process,” he said.

In addition to lowering the ideological temperature of the judicial nominees, Eisgruber would like to see questions focusing on the potential justices’ view of judicial review. He also suggested asking judges to make a commitment to moderation over ideology in order to reduce the contentiousness and also said that the White House should look beyond the beltway for a pool of qualified Supreme Court nominees. “Right now, six of our nine justices had substantial Washington experience at time of their nomination, and five had substantial Justice Department experience,” he noted.

Ifill, for her part, says confirmation hearings are a significant reason behind the loss of public trust in the judiciary. She suggested that the presidential candidates use the nomination process to restore that trust by having judges talk about the intended role of the judiciary and how their choices will enhance the public’s confidence in the legitimacy of our courts and not just advance their own ideologies.

Presidents also should be looking at what skill set is missing and what is needed to create a balanced court, Ifill proposed. “Likewise, we should be asking: What exactly does a Supreme Court justice do? What does the job look like?”

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