Bush breaks the cycle of partisanship on judges

January 17, 2007|By Carl Tobias

Bipartisanship is the byword as President Bush embarks on his final two years and Congress convenes with the first Democratic majorities since 1994. Once the 110th Congress assembled, the president had an excellent opportunity to cooperate with Democrats through the nomination of candidates for the 56 lower court openings. Mr. Bush demonstrated his commitment to bipartisanship by not renominating several controversial appellate nominees last week.

For much of the Bush administration, partisanship and divisiveness have punctuated the judicial selection process, especially for appeals courts. When the 110th Congress began, 16 appellate seats out of 179 active judgeships remained empty. These vacancies are troubling, as they prevent appeals' prompt, economical and fair disposition, inflicting unwarranted expense on parties, the judiciary and the public.

Appellate court appointments are controversial for several reasons. The circuits are the courts of last resort in nearly all appeals for people within their regions, as the Supreme Court reviews few cases. The appellate courts also decide many "hot button" issues such as the right to die, school prayer and free speech. Moreover, attorneys and litigants appeal most controversial District Court rulings.

Accusations and recriminations, divisiveness and paybacks by each political party have long troubled the selection process. For example, Republicans attacked Democrats for preventing Judge Robert H. Bork's 1987 Supreme Court appointment and for blocking nominees of President George H. W. Bush. Democrats correspondingly blamed the GOP for obstructing President Bill Clinton's nominees, even denying them hearings.

Democrats used filibusters to stall a number of Bush nominees whom the Democrats found objectionable. GOP senators responded to filibusters by creating the "nuclear option" whose detonation would have precluded the filibuster but could have threatened the Senate as an institution.

Others said the president did not tender nominees for openings or renominated candidates the Senate clearly opposed, as evidenced by his forwarding no nominees for two 3rd Circuit vacancies and resubmitting two 4th Circuit candidates the Senate twice returned last year. Indeed, after Democrats had won the Senate, Mr. Bush appeared at first to have rejected bipartisanship by renominating five controversial people in mid-November. Those nominations lapsed at the December conclusion of the 109th Congress.

Numerous measures could enable the president to fill the 16 openings. The first, most promising step Mr. Bush took was to forgo renominating the controversial candidates. He had nominated each person multiple times, but the Senate, even with GOP majorities, had not approved them. Mr. Bush displayed much loyalty to these individuals, so the only reason for renominating them now would have been cultivation of the GOP political base. Such a crassly political goal was indefensible because it would have fueled the counterproductive dynamics that have frustrated the selection process.

Mr. Bush's decision to refrain from renominating these nominees may well set the selection tone for the remainder of his term and the 110th Congress. It should break the vicious cycle of distrust, charges, retorts and payback, while fostering appointment of intelligent, industrious and independent judges who have balanced temperament and moderate views.

Passing this first test of bipartisanship is an overture, and Democrats should reciprocate by cooperating to help fill the bench.

Carl Tobias is the Williams professor at the University of Richmond School of Law. His e-mail is ctobias@richmond.edu.

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