The process of selecting judges for federal courts starts out with the president nominating a candidate. Then, it is up to the senate to approve the candidate. Senate hearings and a questionnaire help the senate learn more about the candidate. Many presidential nominations are held up due to differences in ideological views, and thus it is not uncommon for a nomination to be in limbo for months on end. For instance, there has been a federal circuit court of appeals vacancy since 7/8/2009. This is also clearly not a dying strategy as Obama recently lambasted the senate for what he called unprecedented obstruction.
I do not think this is a process that the writers of the constitution intended for and they would probably hate the way it is politicized. Clearly, judges are supposed to be unbiased and simply interpreters of the laws and rights of U.S. citizens. But, we know this is not the case and that many judges have shown to have records that would reflect the democrat or republican stance on the issues. So, with this in mind you can't really fault the senate for twice politicizing this process. It would be better for the U.S. if they voted based on who was the most qualified for the position, but I think we know politicians well enough to realize they will never give up some of their power.
When we get to to the point where the opposite party of the president holds up the nomination of a judge, the president has the option to pick a less partisan judge or wait it out and hope the senators budge. A president can appoint a judge during a senate recess, but when the senate is controlled by the part opposite of the president they typically shrink recess to prevent this from happening. This could have a different effect if the case where that the president was nominating an unqualified judge. In this case the senate confirmation could serve its best purpose. Unfortunately, it seems more times than not the system is used for the wrong reasons.
An unfortunate effect of this slowdown of the nominating process is that the current judges have had to take on more work. The senate just this week approved of two judges for the district court of central Illinois. This was necessiated by the one judge working this court being told by his cardiologist to decrease his workload and thus his stress. Being a judge is a prestigious job that many people go into after a successful career. Lets continue to attract the best judges by keeping the job attractive and not a big burden.
The president could throw a wild card into the nominating process by choosing someone, like Elena Kagan, with very few publicly stated opinions. Two things are bad about this. First, this would give the president incentive to pick someone who has never been a judge before, and thus devaluing experience. Also, it would be allowing the political nature of the process to take complete control. I think a president should nominate the judges they believe are best suited. They should do this even with the knowledge that the person might not be approved. Though, ultimately this is a question of who is playing more games with this process, the senate or the president. And, the more we play around with the process, the more we get away from the core values this country was founded on.
On a final note, it is important that if we ever were to change the way judges get confirmed that we always keep in place the lengthy review process. The lifetime term could be a poison pill if the judge turns out to be unqualified.
You make a great point about the Senate being faulting for an innately political process. While the framers most likely wanted the judicial nominations to be fair and just, human nature prevents this from happening. Also, it is true that the lifetime term could be a major factor in the lengthiness of this process as unqualified judges truly should not be on the Supreme Court.
ReplyDeleteI very much agree with your point on how the "framers" would likely hate the way the confirmation process goes in modern times. It seems that Senators have taken the stance that they need to play to a political base and politicize the process rather than asking tough questions and seeking to look at the qualifications of a nominee.
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