JURIST Guest Columnist Carl Tobias of the University of Richmond School of Law says that while the US federal judiciary has much to be thankful on this Thanksgiving, it and the nation will be even better off if Democrats and Republicans end their partisan wrangling and work together on key matters of judicial policy…

There are numerous important matters for which the United States federal courts can give thanks on this Thanksgiving holiday. First and perhaps foremost are the many legislative initiatives that will be halted or slowed by the November 7 federal elections in which the Democratic Party recaptured majorities in the U.S. Senate and the House of Representatives.

A number of the legislative efforts that the elections will apparently end, curtail or at least delay are initiatives whose institution would have threatened judicial independence. The House had adopted or advanced a majority of these ideas. One is the concept of an Inspector General who would oversee the federal courts. The proponents of this notion contend that an IG is necessary to regulate judicial misconduct, but the measure leaves unclear exactly what the IG would monitor. Moreover, federal judges have voiced concerns that an IG might affect substantive judicial decisionmaking.

The November elections also probably mean that Judge Manuel Real of the Central District of California can enjoy his Thanksgiving without fear of impeachment. This autumn, the House Judiciary Committee opened an investigation into allegations that the judge improperly assisted a litigant in his court. However, this inquiry will probably not be pursued further in the lame duck session of the 109th Congress or in the 110th Congress which opens in January. The recent publication of the Breyer Committee report on potential judicial misbehavior and of Judicial Conference strictures for “judicial junkets” and computerized conflict of interest checking indicates that the bench is taking seriously the duty to regulate itself.

Another proposition would revise Federal Rule of Civil Procedure 11, which covers sanctions for filing improper papers, to reinstitute the 1983 amendment. The vast majority of federal judges have rejected this idea because it would promote costly satellite litigation. Neither the lame duck session nor the 110th Congress will pass the bill embodying the revision that the House has adopted.

A third proposal would split the U.S. Court of Appeals for the Ninth Circuit purportedly because the tribunal is too large, although a number of advocates have vigorously criticized the tribunal’s substantive determinations. The twenty-three of 26 active judges on the Ninth Circuit who have refused to support publicly the division idea can enjoy their holiday secure in the knowledge that no split will occur soon.

There are many other areas in which Democrats and Republicans can cooperate to help the courts during the lame duck session and the 110th Congress. One is judicial selection. There are currently 51 federal court openings for which President George W. Bush has nominated 37 individuals. The judiciary should be thankful that Mr. Bush acknowledged the election-day “thumpin'” and pledged to work in a bipartisan way with Democrats and that Senator Patrick Leahy (D-Vt.), his party’s leader on the Judiciary Committee, has suggested that Democrats would cooperate with Republicans on confirming judges. The judiciary should give thanks because a full bench would enable judges to resolve cases promptly, inexpensively and fairly.

Mr. Bush’s November 15 renomination of five controversial appellate nominees whom the Senate had twice returned might nonetheless frustrate the judicial selection process. The judiciary should be thankful that Democrats appear willing to set aside partisanship and help confirm judges. Democrats may decide which nominees will be very intelligent, independent and industrious, possess moderate ideological perspectives and have balanced judicial temperament and work to confirm those candidates. Democrats could seek expeditious floor votes on nominees whom the Senate Judiciary Committee has approved, prompt action on those who have not had Committee votes and quick hearings for the remaining nominees.

Judges should also give thanks that the related idea of comprehensive judgeships legislation, the first such bill since 1990, might pass. The Judicial Conference has proposed that lawmakers authorize 50 new judicial seats, recommendations that the courts’ policymaking arm bases on conservative projections of workloads and filings. The House Republican leadership has made this measure’s adoption contingent upon splitting the Ninth Circuit, so the judiciary can offer thanks that the elections may alter this dynamic.

The federal judiciary apparently has much for which to be thankful on this Thanksgiving. However, the judiciary will only realize the apparent benefits enumerated above, if Democrats and Republicans end their partisan wrangling and work together in a bipartisan manner for the good of the courts, Congress and the nation.

Carl Tobias is the Williams Professor of Law at the University of Richmond

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