Political Fights Keep Judges off the Bench

Opportunity 08 is an ABC News project with the Brookings Institution to help presidential candidates and the public focus on critical issues facing the nation. This week, Opportunity 08 takes a closer look at judicial policy and how the next president should address contention and inefficiencies in the federal court nomination process.

Things are usually quiet around the Thanksgiving holiday on Capitol Hill, but this year Democratic Majority Leader Harry Reid kept the Senate in session by scheduling meetings in a pro forma session once every three days. Some of the sessions lasted less than a minute, so why bother to convene at all?

Reid effectively blocked President Bush's constitutional ability to fill federal vacancies during a recess – a power that allows the President to circumvent the confirmation process for controversial nominees. In this case, there was a rumor that Bush would appoint surgeon general nominee James W. Holsinger Jr. during the two-week break. In the past, Bush used the power to install nominees whose confirmation Senate Democrats had blocked, including the 2004 appointments of judges William Pryor and Charles Pickering to the U.S. courts of appeals.

Reid's move signals an atmosphere of heightened politicization that, according to one policy expert, threatens the impartiality and independence of the judiciary as a whole.

"As controversy over federal courts rises, the process of selecting and confirming judges for the appellate and district courts has become prolonged, often mean-spirited, and detrimental to those courts, whose collective impact on American society is at least as great as that of the Supreme Court," says Russell Wheeler, former deputy director of the Federal Judicial Center.

Commissions and Timetables could Help Process

To de-escalate this conflict and restore what has historically been a much more efficient process Wheeler proposes the creation of bipartisan commissions composed of respected leaders of the bar, law school faculties, citizens' groups, and the business and labor communities. These commissions would recruit, evaluate and eventually recommend nominees.

These bipartisan commissions' approval of a nominee would supplement the American Bar Association's reports on qualifications.

Wheeler also proposes the introduction of a concrete timetable to expedite the appointment process. He points out that for both Clinton and Bush, over 30 percent of appellate nominations have taken more than 180 days for confirmation.

"Like bipartisan commissions, a timetable can bring procedural regularity to the process but requires only a minimum level of comity between the White House and the majority and minority parties in the Senate" Wheeler says.

Wheeler sees the creation of a more fair and efficient judicial process as urgent and advises the next president to commit to changes before the election. "The time to press candidates to commit to these improvements is before the election," he says. "Pre-election mutual disarmament may prevent knock-down, drag-out battles once the new administration and Senate are in place."

A full version of the proposal, as well as supporting background material, is available at Opportunity 08.

About the Expert and the Project:

Russell Wheeler is a visiting fellow at the Brookings Institution. He studies the selection of U.S. judges and how courts function with other branches of government and the press, among other judicial topics. He is a former deputy director of the Federal Judicial Center, the research and education agency for the federal court system. He has also held positions at the National Center for State Courts and at the U.S. Supreme Court. He is the president of the Governance Institute.

Opportunity 08 aims to help 2008 presidential candidates and the public focus on critical issues facing the nation, presenting policy ideas on a wide array of domestic and foreign policy questions. The project is committed to providing both independent policy solutions and background material on issues of concern to voters.