an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Judicial Vacancies: Focus on Courts Not Candidates
On Monday I wrote about vacancies in the federal courts and I suggested that President Obama has done very well at staffing the federal appellate courts but he is doing poorly in filling vacancies in the district courts -- and that this should be the focus both of the President and the Senate going forward. On Monday evening the Senate confirmed Jane Branstetter Stranch to a seat on the Sixth Circuit. This means that Obama has made the same number of appointments to the federal appellate courts (once we include Supreme Court appointments) that George W. Bush made at the same point in his first year in office.
As currently conducted, the judicial confirmation process produces plenty of finger-pointing. Democrats complain that Republicans are obstructionist. Republicans contend that the President is slow in nominating individuals to the bench and that many of the people he picks are out of the mainstream. (The parties reverse these roles when there is turnover in the White House.) Our courts, particularly district courts, remain understaffed.
Here is how to move things along: focus on courts not candidates. The way the confirmation process currently works is that the President names one individual to a specific seat that is vacant. Judge Stranch, for example, was named to the seat on the Sixth Circuit left open by Judge Martha Craig Daughtrey who took senior status last year. Because the President names and the Senate considers just one individual, the confirmation process focuses on whether that specific individual is suitable. If the candidate is rejected (or the candidacy dies in the Judiciary Committee), the process ends (and the vacancy remains) until the President picks another individual and things start over.
Rather than proceed candidate by candidate in this fashion, a better approach would be for the President and the Senate to operate court by court. Under this approach, the focus would be the same as that in virtually every other setting where a vacancy needs to be filled: conducting a search to fill it.
Here is how it would work. When there is an open judgeship, the President would nominate three individuals for the position. The Senate would consider all three nominees, evaluate their relative strengths and weaknesses, and then pick its favorite. That person would be confirmed to fill the judicial vacancy.
My approach would orient the President and the Senate towards getting specific courts staffed. That is what the confirmation process should be about.
My approach would also give the Senate a task —- selecting the best candidate for an open slot —- that is likely to engage all Senators more fruitfully than asking them, as we do now, to vote a single candidate up or down.
Further, asking the Senate to choose one out three would be more consistent with the role the Senate should play when it comes to confirming judges. It is sometimes said that elections have consequences and one such consequence is that the President gets to pick federal judges. That is true –- but only to a point. Federal judges, who exercise vastly greater powers today than anybody in 1789 could have imagined, are the only members of the federal government entitled to die in office (an honor reserved in the old world to kings and nobles). The Senate should therefore provide its advice and consent more carefully when it comes to judges than to officers of the executive branch who can be fired or removed by election.
My approach would also reduce the rallying around candidates that is an unhealthy product of our current confirmation process. In an op-ed this week, Caroline Fredrickson of the American Constitution Society wrote of “the inexcusable delay in [Judge] Stranch’s confirmation” and said that “[w]hat makes the holdup of this nomination particularly distressing is that Stranch is exceedingly qualified for the job and had bipartisan support from the time of her nomination more than a year ago.”
(A press release from ACS about the op-ed referred to “Judge Stranch’s torturous road to confirmation.” Given events of the past few years, referring to the confirmation process as “torture” is an unfortunate word choice.)
As Fredrickson’s op-ed amply illustrates, when the process focuses on candidates and not courts attention shifts away from whether our courts are properly staffed to how the individual nominee is being handled. Delay becomes a personal injury rather than a public problem. No nominee has a right to a confirmation hearing much less to a prompt hearing; a nominee inconvenienced by delay can simply withdraw. But understaffed courts, especially those now at the district court level, should concern us.
No approach is perfect. Under mine, the President would have to reliably pick three candidates he believes are truly qualified and suitable to serve as a judge. The President should not, for example, send two very weak candidates along with his real pick. The Senate would also be expected to confirm one of the three picks –- rejecting all three should be a rare event.
Some good faith is therefore required -- but less, I think, than is needed under our existing judicial confirmation procedure. Under my approach, the President who sends two weak candidates runs the risk of the Senate retaliating by picking one of the two. And it would become politically more difficult for the Senate to get away with dragging its heels when it is given three options (rather than, as now, one) and is tasked with making the final selection.
Nothing in the Constitution bars the President from nominating three individuals to an open slot and nothing bars the Senate from confirming just one out of three nominees.
There are more than enough lawyers who would make fine judges. The President should find three to his liking. The Senate should then pick one and move onto filling the next vacancy. Posted
by Jason Mazzone [link]
Since senatorial courtesy has been in the past involved home senators offering or being given some options, there is some precedent to this solution. Nominating three people however is more unwieldy.
But, there are flaws. First, it would require the executive to vet many more candidates. It takes long enough to do that now.
Second, it is not "the Senate" that is the problem here. The problem tends to be the opposition party or in some cases individual senators.
It is doubtful the majority would "retaliate" against Obama, for instance, currently by picking one of the weak candidates. Certain local senators also might not support weak candidates for spite.
The opposition party has delayed candidates now that they had no real opposition to -- multiple cases of lopsided votes have been shown. The lack of good options often isn't the point.
As to 'the only members of the federal government entitled to die in office,' tell that to Sen. Byrd et. al.
I wonder if the suggestion further dilutes the executive's capability to search for individuality and leadership in nominees. Among much of congress there is a proclivity for vagueness. Offering a spectrum of 3 choices is an encouragement for congress to select the most imprecision feasible within its advise and consent prerogative. Very few really brilliant people are willing to take posts with influence; letting the executive reinforce the search for character by putting forward the most courageous candidate helps improve the quality of government. ?What was it, precisely, that Republicans disliked about professor DawnJohnsen's credentials? I am glad she was a sole individual. Let Republicans on the senate judiciary committee explain their displeasure in her energy, in her stated directions.