Comity in federal judicial selection

As readers of Judicature are well aware, the process of selecting federal judges is in bad shape. Partisan conflicts have led to fierce battles over nominees, now including filibusters, and in some periods to the bottling up of nominations in the Judiciary Committee. As Sheldon Goldman documented in the March-April issue, obstruction and delay in the confirmation process have grown considerably in the past decade. One effect is to produce a gap between authorized and actual judgeships that is larger than it should be, a condition that reduces the system's capacity to deal promptly and adequately with litigation. Another likely result is that the state of the confirmation process will discourage highly qualified lawyers from seeking or accepting nominations.

In pointing to the problems that currently exist in the selection process, we do not mean to romanticize the past. Although there was not as much overt conflict over nominations and confirmations in earlier eras, the process hardly functioned in an ideal fashion. In particular, patronage and partisan considerations had considerable effect on the choice of people to serve in the federal judiciary, albeit such considerations varied among presidents and individual senators. Indeed, in one sense the current problems reflect a healthy development, a growing recognition that what the federal courts do and thus who serves on the courts are important. Still, it is difficult to be happy about the state of the selection process.

Solutions to the problems that now exist will not come easily. For one thing, the state of the process is a product of multiple factors that reinforce each other. Both policy makers and interest groups that participate in the process care a great deal about the ideological tenor of the judiciary. Republicans and Democrats each seek to gain electoral benefits from their positions on individual judges and on judicial selection overall. And partisans on both sides hold resentments based on past episodes, from the defeat of Judge Bork's Supreme Court nomination to the roadblocks that the Republican Senate created for President Clinton's federal court nominees. This combination makes it very difficult to change the selection process.

An even more fundamental difficulty is the lack of agreement on solutions to the current problems. How can the system be made better? Today, Republicans argue for greater Senate deference to the president's nominees. Democrats argue for more presidential consultation with senators and the avoidance of nominees who are perceived as ideologically extreme. Partisans on each side reject both the diagnosis and the prescription offered by their opponents. The positions of the two sides are not permanent, as recent experience reminds us. If a Democrat is elected president in 2004 or 2008, we can be confident that Democrats will favor presidential prerogatives and Republicans will oppose them. But at any given time, the parties and their ideological allies are firmly entrenched in their positions.

For our part, AJS has long argued that the qualifications of prospective judges should play as large a part as possible in the selection process. But we have learned over the years that qualifications are not a matter on which people can easily agree. Especially when qualifications are perceived through partisan and ideological filters, there can be wide disagreement.

What, then, can we do? Like others who care about the federal courts, members of AJS disagree in our perceptions of problems and solutions. But we can agree that the current high level of conflict over the selection of federal judges has serious negative consequences. Policy makers in both parties and in both the executive and legislative branches should be urged to look for means to foster greater comity in the selection process.

We should not be na•ve about the likely impact of suggestions such as these, given the powerful motivations that have produced the current situation. Yet even the most partisan policy makers must recognize that the current state of the process is not ideal. If they can identify changes in current practices that each side could live with no matter who holds the presidency and the Senate majority, they may be able to institutionalize those changes to make them relatively impervious to shifting partisan control. Another possibility is to institute changes that would take effect only after the next presidential election. If there is a visible, substantial constituency for change, the chances for some movement toward compromise will be enhanced.