Tuesday, December 30, 2008

Unilateral Disarmament in the Judicial Appointments Arm Race

David Stras

With a new president entering office in less than a month, one difficult question for conservatives will be how to treat President-elect Obama's judicial nominees. My friend, Jonathan Adler, has stated in a post on the Volokh Conspiracy that "if we get a President Obama, and he nominates accomplished left-leaning lawyers and judges to the Supreme Court and federal appellate courts, I hope most conservatives and Republican Senators let them go through without much of a fight." Rick Hills, meanwhile, proposed in this post on PrawfsBlawg a "professors' nonaggression pact" against any academic nominees advanced by President-elect Obama because "literally any law prof -- is likely to be as good as, or even a better than, the typical nominee to a lower court, whose qualifications typically amount to being a Senator's friend or staffer." I am not sure that I agree with Rick, but I do think that Jonathan makes an extremely compelling point, one that I would be willing to endorse as a policy matter. In other words, in an ideal world, I would call for fellow Republicans to unilaterally disarm in the judicial appointments arms race.

One powerful argument is that it harms the legitimacy of the judiciary when we spend so much time arguing about who to appoint to the judiciary. A paper by James Gibson and Greg Caldeira, see here, basically makes that point in finding that exposing citizens to advertisements against judicial nominees (and particularly Justice Alito's confirmation) erodes support for the courts. Meanwhile, presenting the public with positive symbols of judicial power such as robes or the use of the words "your honor," teaches Americans that the courts are different than other political institutions and thus should be held in high esteem. The bottom line, as Gibson and Caldeira put it, is that "[p]oliticized confirmation processes therefore seem to have considerable
capacity to undermine the legitimacy of the Supreme Court itself." One possible consequence of our highly-politicized confirmation process is that, if the public believes that judges are nothing more than political actors in robes (as many political scientists believe), then perhaps it will be more difficult for the country to accept politically-controversial decisions like Bush v. Gore.

Moreover, several circuits are now so understaffed that a number of cases are now being decided summarily without oral argument or by panels that have one or more judges sitting by designation from another court (such as district court judges). For instance, the Fourth Circuit now has four vacancies (out of 15 authorized judgeships), three of which have been labeled as "judicial emergencies." There are now 44 judicial vacancies, about 5% of the total capacity of the federal judiciary, with about 22 additional vacancies nearly certain to occur within the next six months. When the confirmation process becomes so politicized (to use Gibson and Caldeira's words) that it becomes difficult to get the work of the judiciary done in an efficient and timely manner, then it is time to step back and reexamine the process.

I am sure there are other arguments as well for a depoliticized process, but it bears mentioning that the average circuit court nominee has taken more than one year to confirm during the presidency of George W. Bush. For those nominations that have been renewed from one Congress to another, that figure jumps to more than two years. To my knowledge, it has taken longer to confirm President George W. Bush's circuit court nominees than for any other president in United States history. In my view, if Senators were holding up nominees in order to closely examine their credentials or ideology, then I would have no objection to a lengthy, probing process. But that is simply not the case in most instances. Senators are now refusing to give judicial nominees a vote in order to please interest groups and to extract concessions from the opposing party. Judicial nominees have become a bargaining chip in a process that has increasingly involved vote-trading among Senators (according to Orrin Hatch).

In an ideal world, I would very much support disarming over judicial nominees. Unfortunately, however, we do not live in an ideal world. In a later post, I will explain why it is unlikely that we will return a time when nominees to the lower courts were confirmed within weeks, not years.


If a court nominee cannot honor his or her oath to "faithfully and impartially discharge and perform all the duties incumbent upon me as judge/justice under the Constitution and laws of the United States" because they believe that the Constitution and laws can be rewritten or ignored to accomplish their personal policy goals, then perhaps conservative Senators who swore their own oath to "support and defend the Constitution of the United States" might feel obligated to call into question the legitimacy of such a judicial nominee.

Declining to challenge such nominees during confirmation arguably only leads to courts which will discredit themselves with decisions unfounded in law.

I question how many of the interested parties share your view that undermining the legitimacy of the courts is an evil to be avoided. It is certainly standard fodder for the Republican base to claim that judges are a bunch of black-robed tyrants, overturning the will of the people, etc., etc, and this has been a standard mode of political argument for at least the last several decades.

Consider the infamous statements of Sen. John Cornyn:

And finally, I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country. Certainly nothing new, but we seem to have run through a spate of courthouse violence recently that's been on the news. And I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in violence. Certainly without any justification but a concern that I have that I wanted to share.

Now, I presume Sen. Cornyn would argue that he is not trying to undermine the courts; rather, he would say that the courts undermine themselves when they make decisions with which John Cornyn disagrees. But regardless, one of the following must be the case: (1) John Cornyn actively seeks to call the legitimacy of the courts into question, because he believes it furthers his political agenda, or (2) he honestly believes that activist liberal judges undermine the legitimacy of the courts, in which case the only way he can uphold the dignity of the courts is to oppose liberal nominees.

Whichever of these represents his true thinking, it's unlikely he would be moved by this aspect of your argument.

Steve M: "...It is certainly standard fodder for the Republican base to claim that judges are a bunch of black-robed tyrants, overturning the will of the people..."

As I've said here for ages, the "Right's" concern with so-called "counter-majoritarianism" will always be directly proportional to the dominance of Republicans in Congress or the White House at times when the bench is not similarly under the GOP thumb.

As for me, I would suggest to the professor that disrespect for the bench is driven at least as much by the published words of certain of its members as by any other influence.

There are now 44 judicial vacancies, about 5% of the total capacity of the federal judiciary, with about 22 additional vacancies nearly certain to occur within the next six months.

This is less troublesome than the 15.4% vacant in 1993, 11.3% in 1997, or even the 9.4% in 1994. Lame duck vacancies also seem rather expected.

[see here and here]

To my knowledge, it has taken longer to confirm President George W. Bush's circuit court nominees than for any other president in United States history.

I'd like some data here. My link provides data from 1977-2003 and does not really tell me that. (High in later Clinton years, then drop considerably in 2001-2002).

Also, the reason for the delays, especially perhaps in the latter years of his presidency, are probably complex. See, e.g., here.

Particularly divisive politics surely helps delay things, either way, I'm sure.

But, the discussion notes that "if Senators were holding up nominees in order to closely examine their credentials or ideology," it would be acceptable, but not to "please interest groups and to extract concessions from the opposing party."

Ideology was clearly a primary reason behind holds etc. under both Clinton and Bush43. The "Gang of 14" compromise address controversial picks that were controversial in large part for ideological reasons, though in some cases credentials also were involved.

I'm not sure if pleasing interest groups really are necessarily separate from this. As to concessions, what ones?

A big concern in the Bush years was that he was unjustly trying to change the system (including as to senatorial courtesy) that developed.

"Horse trading" was not my understanding of the delays as such though it might have been an issue in individual cases. Hatch btw is not exactly a neutral source.

There are some really great points by Joe, but I suspect we view things very similarly:

This is less troublesome than the 15.4% vacant in 1993, 11.3% in 1997, or even the 9.4% in 1994. Lame duck vacancies also seem rather expected.

I agree completely. Large numbers of vacancies in the federal judiciary at any point in time are disturbing, particularly when a large number of vacancies are on one particular court.

Ideology was clearly a primary reason behind holds etc. under both Clinton and Bush43. The "Gang of 14" compromise address controversial picks that were controversial in large part for ideological reasons, though in some cases credentials also were involved.

Yes, but I think you may be missing the overall point here. No doubt many of the delays were for ideological reasons, but the problem is that the nominees are being held by the Senate without any active consideration at all, sometimes for years at a time. Peter Keisler, for example, has been stuck for several years and there has appeared to be no movement on his nomination for some time. Peter is hardly one of the most ideologically conservative nominees advanced by President Bush during his 8 years in office.

Again, the key in my view is that delays are just fine if there is active consideration of a nominee, but it hardly seems justified when some circuits have judicial emergencies, a nominee is no longer being actively considered by the Senate, and there has been no up-or-down vote on the nomination.

I'd like some data here. My link provides data from 1977-2003 and does not really tell me that. (High in later Clinton years, then drop considerably in 2001-2002).

I suggest you read Ben Wittes's excellent book, Confirmation Wars. A Brookings Institute paper by Russell Wheeler is also helpful with some of these numbers. I will quote from one of my recent papers published in the Texas Law Review:

During the Administration of George W. Bush through April 7, 2006, it took more than one year, or a total of 394 days, to confirm the average circuit court nominee,
and the delay is sure to lengthen as we approach the end of President Bush’s second term. For sixteen circuit court nominees who were renominated by George W. Bush after their nominations lapsed in a prior Congress, it took an
average of 769 days, or more than two years, for them to secure
confirmation. In contrast, between 1945 and 1986, the average circuit court nominee took between one and two months to confirm. (86 Tex. L. Rev. 1033, 1073).

On the increased partisanship on circuit nominees, Nancy Scherer has an excellent book entitled, "Scoring Points: Politicians, Political Activists and the Lower Federal Court Appointment Process."

"Horse trading" was not my understanding of the delays as such though it might have been an issue in individual cases. Hatch btw is not exactly a neutral source.

The gang of 14 itself is a great example of horse trading and using particular nominees as political chits. There are other examples too that I discuss in my article. Although it is ancient history, Lyndon Johnson once appointed a preferred judicial nominee of Strom Thurmond in exchange for Thurmond's support on a piece of civil rights legislation.

Someone recently in December 2008 reframed an examination of an article published on the website at American Constitution Society February 2008. That writer is a legal advocate for environment. Both essays are condensed and easy to read. They provide a glimpse from one important perspective of the stakes, for example, the perennial capitalist search for resource development as tempered by judicial oversight.

There has been a kind of attrition in colleges since I attended, a view I heard much earlier in my life voiced by my elders at that time. Yet, I would hope current professors, deans, and endowment managers have the capacity to help instill in the students now who later will become judges, some sense of the honor and dignity which the original post author espouses and cites from two outside blogs, one notably conservative, the other centrist. My hope is a new arms length interbranch respect will foster just such an armistitial spirit as the writer conjures. Perhaps some critical thinking will help interpret the approaching political maelstrom. The process of populating the bench, and DoJ, clearly are top item on the current crop of Republican leadership's agenda.

Writing as an outside observer of the US federal variant of an essentially common law system, it seems undeniable that in the USA (i) the mechanism for the appointment of the judiciary has fallen into disrepute, (ii) the standing and public authority of the judiciary has diminished, and (iii) many think that something needs to be done.

The constitutional settlement adopted at the time of the separation of the USA from the Crown, transposed the then appointment method for federal judges (by the Crown on the advice of Ministers) to appointment by the President with the advice and consent of the Senate.

Historically, that process has, on the whole, worked well enough. However, I would point to the evolution of the English process.

In the UK the selection process was until recently typically arcane. An apolitical civil servant (the Lord Chancellor's Appointments Secretary) and his departmental assistants had a systematic process of consulting the judiciary on the suitability of members of the bar for elevation to the bench. As and when vacancies arose, the consultations would intensify and in the end a list of three or four names would be submitted - and one would be recommended to the Crown for appointment.

On the whole this worked quite well, but it tended to perpetuate some of the biases in the system, since like tends to approve of like: recommended candidates were usually white, male, public school, Oxbridge educated, and conformist. Appointments to full-time judicial positions were very rarely made from outside the practising bar, nor of people who had not held part-time judicial appointments. Elevations to the appellate bench were almost exclusively from the judiciary. Academics were not generally considered for appointment.

In an endeavor to increase the openness and transparency of the system, there is now an independent Judicial Appointments Commission which is generally considered to have worked very well. But we do not have a Federal System in the US sense (save that England and Wales have a different legal system to those of Scotland and Northern Ireland) and therefore the Judicial Appointments Commission is recommending candidates for judicial posts at all levels and there is advertisement for candidates for the available posts.

As a consequence:-

1. Politics now plays a very small part in judicial appointments. No judges anywhere are elected and on appointment every judge is expected to sever his connections with political life - resigning from political clubs and organisations and not speaking out on political matters. Recommendations from political figures play little or no weight in the selection process.

2. The place of academia in the appointment process is still minimal. At the base level, candidates may seek recommendations from their law professors, but recommendations from judges before whom one has appeared will be much more weighty.

3. The idea of transposing either an academic or a legislator directly to a full-time judicial appointment at appellate level is unthinkable. (There used to be a tradition that an Attorney-General who had not blotted his copy-book could expect a 1st instance judicial appointment to the High Court Bench - but it is likely that there would be very great judicial opposition to the appointment of Lord Goldsmith [consequent on his advice on the Iraq Invasion] and that tradition may well now be at least half-dead if not completely so).

4. It is still the case that appointments to the High Court tend to be made from those who are considered distinguished and successful practitioners before the Courts and who accept the honour of elevation with considerable financial sacrifice and, of course, only a few high court judges go on to the Court of Appeal or the House of Lords.

We do not interpret "quamdiu se bene gesserint" as equivalent to appointment for life. All our judges now have a statutory retirement age.

Which US distinguished trial lawyer is going to give up his practice and income to take a drop in salary to a derisory level only to be vilified as US Judges currently are? At least we give our senior Judges the honour of knighthood, a decent salary and pension, the chance to make their mark on the development of the law for centuries to come and relative freedom from public attack in the media and in parliament.

The present state of the US appointment process is practically a guarantee that only the second rate will allow their names to go

I would agree with Robert Link's comment above that the name-calling and vilification also comes from all sides. One sees examples of the language on this blog with the likes of LSR Bart referring to to a majority of the Supreme Court as "the Boumediene Five" as if they were some kind of gang.

One even sees it in the intemperate tone of some opinions written by members of the judiciary themselves as well as in the way some academics and legislations write and speak.

As examples of intemperate language by the Judiciary one could cite the Justice Scalia dissent in Lawrence -v- Texas, or in Atkins -v- Virginia where his words:

"The Court makes no pretense that execution of the mildly mentally retarded would have been considered "cruel and unusual" in 1791. Only the severely or profoundly mentally retarded, commonly known as "idiots," enjoyed any special status under the law at that time. They, like lunatics, suffered a "deficiency in will" rendering them unable to tell right from wrong."

must have been deeply offensive to every parent of a retarded child and were certainly incompatible with evolving standards of decency in a civilised society.

There is quite a strong feeling in the UK that lawyers should practise before the Courts and that in the words of the old saw: "those who can do, those who can't teach". It has certainly been the practice in the top firms of solicitors and the most respected chambers to view with some suspicion those who leave University with a first - the ideal UK law degree for the professions is a 2.1. While the old rule that no academic work should be referred to in court while the author is still living has gone, it is still very much the case that academic theory does not have much place in the Courtroom. We do not have the proliferation of "amicus" briefs from which your court system suffers.

But perhaps the biggest difference between out two systems is that there has never in recent years been an organised attempt by a faction within our nation to influence the shaping of the law of the kind undertaken in the USA by the far right.

It is all very well for Professor Stras, a scion of the Federalist Society, to speak now of "unilateral disarmament" - when one would hope that for the next 4 years at least (and hopefully for much, much longer) the influence of the Federalist Society and other organisations of that nature on judicial appointments would be very greatly diminished.

But I do think, as I have said on other threads, that perhaps the time has come to consider fundamental reform in a systemic manner. Your court and judicial systems, like your constitution are beginning to suffer the ravages of old age. It could be said that the point has now been reached where botox and face-lifts will no longer do. It is time for renewal rather than patchwork repair.

I appreciate the reply.

It is useful to see the issue as an ongoing practice. This helps to explain the cause of the problem. It also puts into perspective the problem itself. Finally, it helps to discuss such things in a bipartisan fashion.

As to "without any active consideration at all," I'm unsure how useful that is. Do you means an actual vote in committee or the like? It sounds like something of a low bar, honestly. I take the point in a way, though.

Finally, I appreciate the citations. Still, as one of my links noted, the cause of such delays are complex. The citation, e.g., argues Bush himself had something to do with it. An analysis of the situation is therefore a complex undertaking.

As to the Gang of 14 being an example of "horsetrading," we seem to have something of a disagreement of terms. I'm not sure how that word applies there.

It was a political compromise respecting the judicial nomination process, not some sort of quid pro quo for legislation or the like. The main people held up were not "chits" but controversial ideological nominees, some of whom btw had some "active consideration."

We probably would agree on the bottom line & now would be a good time to set forth better ground rules, disarmament talks much harder during the last two administrations.

As an aside, the amicus brief comment by M. is interesting. Do we "suffer" for it?

I'm not sure if that is really much of an issue, especially since only a few cases really have too many.

This resource also provides a chance for groups such as English law lords or legal representatives of Israel to provide a brief in a relevant case. Or, various domestic sorts. Seems useful, especially given a certain parochialism we suffer here.

I'd add "intemperate tone" in opinions is not a recent development. There were 19th Century Scalias.

I reckon you have some there too.


What makes you think such briefs even get read by the Justices ?

I think most of them are mere fodder for the clerks. I would advocate the English position which is where the Court wishes to be assisted by an amicus it asks for one.

PS - Happy 2009 everyone.


PPS - if you have time browse BAILII Recent Decisions . See if you can find a single page in which a member of any Court uses the sort of language of which I complain.

Yet we are not a country as prone to euphemism as you - I have never heard an Englishwoman refer to the WC as "the little girls' room".

This comment has been removed by the author.

In oral arguments and in various opinions, amici briefs are cited.

To cite just one, during the oral argument respecting execution of minors, Justice Stevens cited such a brief respecting int'l law implications of the matter.

There is also an essay in the book "A Year at the Supreme Court" on the usefulness of amici in certain cases.

Many surely are only (if that) read by clerks or written for the purpose of interest groups. I bet the justices don't read some of the main briefs too closely either, though.

As to "prone to euphemism as you," I am no expert on English culture. Still, Sarah Lyall in her book "Anglo Files: A Field Guide to the British" does provide something of a different view on intimate matters of that sort.

As to how English judges behave, maybe I'm misled by Rumpole on the Bailey books.

Anyway, C-SPAN once broadcast a discussion between an English law lord (IIRC)and Justice Ruth Bader Ginsburg. The issue of a woman's WC was raised. Not sure what word she used though.

Isn't "WC" itself a euphemism?

"WC" is an abbreviation for "Water Closet" rather than a euphemism. The most current UK terms would be the "loo", or the "bog" (rather vulgar).

The most common euphemism is municipal-speak; loos provided for the use of the public are referred to as "public conveniences" and for the connoisseur of municipal-speak are locatable in Westminster by signs saying "Ladies" and "Gentlemen", but in the City of London, by signs saying "Men" and "Women", apparently because the City Common Council took the view that no lady or gentleman would use such a facility but would instead repair to an hotel or other premises.

My understanding was that the term "Water Closet" was a Victorian-era euphemism for toilet.


See Nancy Mitford's 1954 essay The English Aristocracy”, in which she provided lists of "U" and "Non-U" words - U being upper class or aristocratic usage and non-U - middle or lower class.

U = lavatory or loo
Non-U = toilet

It is "toilet" which is the euphemism deriving from the French "cabinet de toilette" the small room in the grander French houses where ladies attended to their make-up and hair.

Wikipedia has some modern English signage:-
Birmingham UK National Exhibition Centre Signage

A bit of a far cry from appointments to the US Federal Judiciary - what did I start - sorry!

Disarmament does not have to be unilateral in this case. Bush has already made nominations that were blocked by the Democrats. You could call on the Senate Democrats to vote them through now (perhaps after a reappointment by the new President), pairing them with new, leftwing, nominees.

The friend who holds your hand and says the wrong thing is made of dearer stuff than the one who stays away.
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