The American Bar Association has proposed a change in federal judicial nominations that could help end the current system of trench warfare in the Senate and reduce the ridiculous logjam that has left scores of vacancies on federal benches.
Under the plan, the White House would create a bipartisan commission that would make recommendations for federal appeals courts. The proposal, which has the support of retired Supreme Court Justice Sandra Day O’Connor, would establish similar panels at the state level, nominated by each state’s senators, to evaluate and recommend federal trial judges.
The Fourth Circuit Court of Appeals is a prime example of how judicial nominations too often become pawns in the political game under the current nominating system. The Fourth Circuit, which includes North Carolina, has spawned some bitter nomination standoffs, going back to the early 1990s when Democrats refused to approve Judge Terrence Boyle, favored by Sen. Jesse Helms. In retaliation, Helms maneuvered to block subsequent Democratic nominations. More recently, the nomination of U.S. District Judge Robert Conrad of Charlotte to the Fourth Circuit has stalled. On the District Court level, another N.C. nominee, Judge Thomas Farr, has twisted in the wind for almost two years.
There’s plenty of blame to go around for why the current system breaks down, from nominations made on the basis of narrow “litmus tests” or repeatedly reintroduced (as in the case of Judge Boyle) simply to provoke confrontation, to senatorial obstructionism and grandstanding during televised nomination hearings. But in the end, it boils down to the increasing politicization of the judiciary, with judgeships exploited as proxy battles in the larger context of culture wars and red vs. blue America. Both parties are to blame, and both could be part of the solution by embracing the Bar Association’s proposal ó beginning with the two presidential candidates. Both should pledge that their administrations would support bipartisan nominating commissions.
Bareknuckled nominating fights and, at the state level, expensive political campaigns threaten the integrity of the judiciary. The current nominating system has become such a distasteful affair that some qualified nominees withdraw their names rather than submit to the confirmation ordeal. Judicial nominating commissions have been introduced successfully in several states, including Florida and Arizona; it’s time to adopt them more broadly. The ABA’s proposal offers a sensible reform that could reduce roadblocks at both the state and national level while restoring some dignity to the nominating process.