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.

What should alarm us most is not the perception of partisan slant in these choices, but the fact that they never fail to surprise us. Knowing we can reliably list John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito as our "conservative judges" with John Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg as the "liberals" is the most compelling evidence that this apple is rotting at its core. Our ability to consistently predict how each will vote on any given subject has left Anthony Kennedy in the position of effectively acting as a one man arbiter of what shall or shall not pass constitutional muster.

Rather than calling for more appointments that appeal to our personal, partisan interests, we should instead be encouraging the selection of new candidates that will occasionally surprise or dismay us, but always reassure us of their competency through strong, well researched, rational opinions on each ruling.

Without wishing ill on anyone, it should come as no surprise if President Obama winds up filling multiple seats on the Supreme Court bench. The most commonly mentioned name is, of course, that of Ruth Bader Ginsburg. Having just celebrated her 76th birthday last week, Justice Ginsburg recently underwent cancer surgery and is now embarking on a regimen of chemotherapy treatments. Conservatives may not feel inclined to balk much if Obama replaces her, though, no matter whom he selects.

Ginsburg has long been recognized as the "liberal lioness" of the court, and even if the president tapped someone who ruled in favor of issuing condoms to gay hamsters in Catholic schools across the nation, the makeup of the court would remain relatively intact.

A similar sentiment could hold sway if Stevens or Breyer --at ages 88 and 70 respectively -- choose to step down. But what if Antonin Scalia, himself in his seventies, decided to retire or suffered a severe medical mishap? Even Chief Justice Roberts, seemingly youthful and hearty at 54, gave everyone a scare in 2007 when he had a second benign idiopathic seizure and fell from a dock at his vacation home.

Should Barack Obama be called upon to fill one of those positions, a battle royale will be in the offing and the country will once again be bloodied and bruised.

I would encourage our new president to abandon the pre-approved candidate lists of traditional party screeners and chart a new course in keeping with his campaign promises of a post-partisan nation. There are justices out there who will have doubtless enraged politicos on both sides of the aisle at times but received consistent approbation from their peers for their well reasoned, thoroughly documented, and concisely written opinions. The problem is you won't find their names by consulting the RNC or the DNC. We deserve better than we've been getting and only the president is in a position to raise the bar.

If Barack Obama truly wishes to write his legacy large on the pages of history, this is one area where he could do so without being fettered by the likes of the House and Senate majority leaders. He owes us that much, and he should step up to this awesome responsibility and deliver, for the benefit of the nation he seeks to serve.