Monday, July 04, 2005

Advice and Consent

So if you thought that the fight over Janice Rogers Brown was a barnburner, you ain't seen nothin' yet. As many of you know, Sandra Day O'Connor has announced her retirement- meaning that the biggest fight over judicial nominees is about to begin. The sides are drawn- conservatives arguing for a true believer, liberals vowing to block the true believers. It's going to be a big time fight.

However, I wonder if this is the best way to choose our jurists. The Framers of the Constitution envisioned an appointment process that was closer to a dialogue between the President and the Senate- a process of advice and consent. Instead, we have a process in which the President names his choice, and the Senate approves or denies. This is not at all what they had in mind.

It's also obvious that the Framers didn't trust the people with a say in the matter. Under the original text of the Constitution, the Senate was chosen by staste legislatures- their constituency was the state as such. It was not until the 17th Amendment that the Senate was directly elected by the people. The House of Representatives didn't have a vote, because of the fear that the people would be fickle and passionate. The House, directly accountable to the people, could elevate a popular demogogue, a pop star or a ballplayer (Johnny Damon, perhaps?) to the highest court in the land (or the Cabinet, also nominated a similar way).

I live in a state where the judges are elected. Although judicial terms are 10 years, judges are nevertheless aware that unpopular, though legally correct decisions may come back to haunt them. As a result, we have an appellate judiciary that is mildly regarded in other states. New Jersey selects their judges like the Federal system, but that after seven years the Senate gets to reconfirm (or not). California appellate judges are nominated by the Governor and confirmed by a commission, but at the next election, the voters have an opportunity to vote the judge out.

Both Jersey and California are considered excellent judiciaries, and other states look to them for guidance. Elected judges are less well regarded. But the fact of the matter remains that United States judiciary is considered to be the most independent and influential in the world. Judges will sometimes make unpopular decisions. It simply goes with the turf. Life tenure empowers judges to rule without fear of reprisal. The appointment process also helps to keep unqualified single issue candidates from the High Court (Roy Moore, perhaps?). Federal judges are far more qualified to the bench than most state court judges.

I think the answer is to amend the Constitution. Create a judicial nominating commission. The commission would consist of officials from all three branches of government. The commission would have a free hand to name a candidate. Their candidate would be submitted to Congress where both houses would get a vote, and the President could veto, just like a bill. There's the carrot, here's the stick- if the political branches have taken no action on the nomination within a set time- say 180 days- then the nominee is automatically confirmed to the bench.

The benefits of this idea should be obvious- nomination by committee will discourage lightning rod nominees. The candidate will have to be very well qualified and a consensus builder to survive two houses of Congress and a Presidential veto- think O'Connor, Breyer, Lewis Powell, and Charles Evans Hughes. Don't think Scalia, Brennan, or Rehnquist.

It probably wouldn't depoliticize the process entirely, but it would make a difference- and it would fill up long term vacancies on the district courts, where there is more work to do- pleas to take, settlements to approve, etc. As it stands now, the process is broken.

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