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Unilateral Disarmament in the Judicial Appointments Arm Race

By Jack M. Balkin

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.

Full post as published by Balkinization on December 30, 2008 (boomark / email).