THE FEDERAL COURT NOMINATIONS BATTLES: HAVE WE CONSIDERED THE CONSEQUENCES?

by Judge Timothy K. Lewis

Nineteen years ago, in the fall of 1992, I was nominated by President George H. W. Bush for a seat on the United States Court of Appeals for the Third Circuit. My confirmation hearing lasted one hour. In fact, I had no time to prepare for it. As a federal district judge, I was in the courtroom, charging a jury, when my secretary burst in with the news that my senate hearing was to be the very next day. That is how much notice I had. When the vote was called only a few days later, I was unanimously confirmed.

Don’t get me wrong. This is not to celebrate me. It is to reflect on a better time for our politics and ask how things went so wrong. Among the 192 Article III judges confirmed during the elder Bush’s presidency, only David Souter and Clarence Thomas faced confirmation battles (with Thomas undergoing a very difficult confirmation battle). But, of course, they were under consideration for the Supreme Court.

Compare that now with the Obama administration. The president has had only 96 Article III nominations confirmed and 55 others remain in limbo, awaiting senate action. They are stuck in a process that should by all constitutional standards remain rigorous, but shouldn’t it also be productive? In the same period of time, George W. Bush had 145 confirmed nominees and Bill Clinton had 163 confirmed.

The Obama administration was slow out of the gate on this one – nominations trickled forth in the early days of the administration when the president’s team should have been well-prepared with the names of nominees. But a considerable amount of the fault for this also has to be laid at the feet of Republicans who have made it a badge of honor to frustrate this president, himself a man of the law, from shaping the federal courts he inherited from George W. Bush. If you doubt this conclusion, reflect for a moment on the senate minority leader’s comment shortly before the 2010 mid-term election when he said that the top -- top -- political priority over the next two years should be to deny President Obama a second term in office. Really, senator? So where on the priority list do we put conducting the senate’s constitutional business?

What do we stand to lose? When compared to the debt-ceiling debate this summer, the lag in judicial confirmations may seem like the wrong fight to pick, but that would be a dangerous conclusion. For one, the president has an opportunity to make a significant contribution to the diversity of the federal courts. Of the confirmed nominees in the Obama presidency, nearly half are women (nearly twice that of the Bush and Clinton years) and about a fifth of them are African-American. There are also three openly gay nominees.

There are some very practical consequences to leaving so many judicial openings unfilled, too, and they have to do with the court's business. The district courts are the federal trial courts; the circuit courts are where appeals are heard. While the Supreme Court is the court of last resort in the federal system, it only takes a handful of cases each year. So a delay in confirming judges for these lower federal courts means that the business of justice is slowed. A court with two or three vacancies simply cannot meet the demand with the efficiency the parties deserve and that the rules and procedures mandate. The old cliché is “justice delayed is justice denied,” but note that we are not only speaking here about the assertion of principle. There are real world consequences to this situation: businesses suffer while awaiting decisions on crucial matters; where there are liberty interests involved, people suffer. Imagine telling the man unfairly convicted that his appeal can’t be heard because there aren’t enough judges to handle it.

One has to consider what damage is done to the judicial profession itself. Throughout most of American history, we have tended to look upon the federal judiciary as non-partisan. There is a reason for this: the judiciary is meant to act as a counterweight to the political branches of our government, not move in lock step with them. While presidents, of course, tend to nominate those who share their perspective on judicial matters, and to some degree that is informed by politics, judges seek to make unbiased decisions based on neutral principles.

Naturally, then, judicial nominees should be confirmed on the basis of qualifications, rather than political affiliation and this was long the tradition. Yet a quick look at those Obama nominees who failed to get senate confirmation shows a dangerous development:

Goodwin Liu was nominated for the Ninth Circuit and received the endorsement of such high profile Republicans as Ken Starr and John Yoo, yet his name was withdrawn under threat of a Republican filibuster due to some intemperate remarks he made a few years ago about the nominations of Sam Alito and John Roberts to the Supreme Court as well as some scholarly papers that suggested a constitutional mandate for the welfare state.

Robert Chatigny, a Connecticut federal district judge, was put forward for the Second Circuit Court of Appeals, but withdrew his nomination after Republican critics accused him of being “soft” on the sentencing of sex offenders and for granting a stay of execution for Michael Bruce Ross, a serial killer who refused to oppose his own execution. Chatigny had wanted a clearer sense of whether Ross, who saw his execution as a release to another life, was competent to make that decision before allowing the execution to go ahead. Eventually, it did.

David Hamilton was eventually confirmed 57-39 for a seat on the Seventh Circuit Court of Appeals, but the opposition was substantial, based largely on two decisions: one finding an Indiana law requiring counseling and a waiting period before an abortion unconstitutionally burdensome and another in which he found the practice of opening sessions of the Indiana legislature with a Christian prayer to be a violation of the First Amendment establishment clause.

Finally, in what feels like a tit-for-tat political skirmish, Barbara Milano Keenan’s nomination to the Fourth Circuit was delayed by Republican filibuster in part because Democrats derailed the original nominee for the spot, William J. Haynes III, who had been put forward by George W. Bush way back in 2005. Haynes had been opposed by Democrats because, as a counsel at the Pentagon, he had been involved in conversations over the alleged "torture" of detainees. Once that nomination failed, the seat was left unfilled until Obama's inauguration. Keenan had no serious opposition; she was eventually confirmed 99-0.

With such tales, what chance is there for maintaining a judiciary indifferent to politics, as the Framers intended? And what chance is there that a talented judge would follow his convictions when a potentially controversial decision could make him politically unsuitable for promotion to a higher court? In each case, I'd like to think that principle would win out, but the partisan process of the past few years makes me worry.