Changing the Dynamics of Making Judicial Appointments

Even in the midst of economic turmoil and two wars, last week saw the attention of the nation's voters turn to judicial nominations when President Obama tapped David Hamilton for the U.S. 7th Circuit Court of Appeals. While the White House touted the pick as proof of the president's intentions to appoint moderate, compassionate, and well-qualified justices to the bench, critics of the administration were quick to point out some controversial rulings he made on abortion and an instance where the same court opined that Hamilton had been guilty of an abuse of discretion in one ruling.

The battles that lie before the nation on this issue may be inevitable, but the landscape for these arguments has changed over the last two years. There are well over a dozen positions in the appellate courts which have remained empty for an extended period of time. This came as a result of an intransigent Democratic membership, which used every procedural tool available to block appointments by President George W. Bush that they deemed too conservative.

Now the tables have turned and the voters have empowered not only a new president to make such appointments, but seated an expanded Congressional majority behind him to facilitate the success of the nominations. With a modicum of help from moderate, blue-dog Democrats, the Republicans could make an effort to stave off the most liberal selections, but this path also poses problems. Ed Morrissey recently reminded us of the lectures given by the GOP to its Democratic colleagues on this issue:

As we argued during the Bush administration, elections have consequences, and one of them is the appointment of federal judges. The Constitution requires the "advice and consent" of the Senate, and all judicial appointments should get up-or-down votes in the Senate.  However, let's not pretend that Obama has nominated a moderate.

For my part, I've long felt that the quality of judicial nominees we've received over past decades has decayed, not because the selections were too liberal or too conservative, but simply because the selection process itself is flawed. The law is a beast unto itself and it rarely serves one master for long. An honest evaluation of constitutionally sound decisions by the courts will eventually anger observers at either end of the political spectrum. By paring down the short list to include only candidates who have never issued a ruling in violation of any number of litmus tests, we intentionally block out the truly independent thinkers and are left with nothing but a collection of partisans who allow politics and ideological dogma to color their interpretations.

Beyond the barriers of party platforms, history has shown us that presidents have, on occasion, been less than serious in fulfilling their appointment duties. In times past, these lifetime positions of high stature have been conferred upon troublesome political opponents as a way of removing them from the playing field. White House occupants have also used the SCOTUS bench as an early retirement reward for distinguished service by politicians with little or no judicial experience. Still others -- most recently including the curious case of Harriet Miers -- have attempted to seat close, trusted friends and allies absent any serious indication of communication skills or superlative constitutional expertise.