President Barack Obama campaigned on a pledge to decrease the ubiquitous partisanship that has infected the federal government.
One area crying out for bipartisanship is the choice of federal judges. The chief executive can also profoundly affect selection because the United States Constitution expressly delegates to the President responsibility for appointments. Thus, the contours of postpartisan judicial selection warrant scrutiny.
Charges and recriminations, toxic partisanship and continuous paybacks have plagued judicial appointments for two decades.
Democrats asserted that President George W. Bush selected politically conservative nominees who were not consensus choices and failed to consult senators from the states in which openings materialized before tapping nominees. He, in fact, submitted certain nominees on multiple occasions, despite opposition from Republican senators.
The GOP blamed the Democrats for not expeditiously analyzing Bush nominees or promptly arranging Judiciary Committee hearings and votes or Senate floor debates and votes. The Democratic Senate majority actually supplied numerous appellate court nominees no hearings.
The Obama Administration should follow a bipartisan selection approach for several reasons. Democratic and Republican cooperation should promote the appointment of outstanding jurists. Moreover, prolonged vacancies erode the swift, economical and fair disposition of lawsuits. Partisan infighting also undermines citizen regard for the chief executive, the senators, the nominees and the judges whom the Senate approves.
President Obama should consider and adopt numerous measures that promote bipartisanship and rectify the unproductive selection dynamics.
First, the new chief executive ought to maximize consultation by seeking input from both parties' senators, particularly from jurisdictions where openings arise, prior to formal nominations. He must be solicitous of GOP Judiciary Committee members, such as Arlen Specter (Pa.) and Orrin Hatch (Utah), because that panel assumes lead responsibility for confirmation. For example, President Bill Clinton's consultation with Senator Hatch when he chaired the panel fostered the smooth approval of Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer.
The Obama Administration should also propose consensus nominees, who are very intelligent, ethical, industrious and independent as well as have balanced judicial temperament.
The chief executive should also work closely with both houses to enact thorough judgeships legislation that would create over 60 new appeals and district court positions. This suggestion incorporates proposals by the Judicial Conference, the federal courts' policymaking arm, which are based on conservative estimates of judicial resources and cases. Congress last passed a comprehensive bill in 1990, while adoption would permit the judiciary to conclude suits promptly, inexpensively and equitably. The President and legislators could even assess and institute a bipartisan judiciary that would enable Republicans to suggest a few nominees.
Democrats and Republicans should be responsive to the President's bipartisan overtures. The Obama Administration and Congress ought to implement these proposals, although the Democrats enjoy a substantial majority in the Senate because the ideas could break the vicious cycle, should facilitate appointments and would benefit the courts and the nation.
President Obama vowed to restore bipartisanship. One crucial field in which he can fulfill this pledge is judicial appointments. A bipartisan process should minimize the detrimental selection dynamics, enhance justice's delivery and improve public respect for each federal branch.
ABOUT THE WRITER
Carl Tobias is the Williams Professor at the University of Richmond School of Law.