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Jason Mazzone
Yale Law School
JURIST Guest Columnist

The filibuster Senate Democrats have staged in response to Miguel Estrada痴 nomination to the D.C. Circuit Court is only the most recent episode in a long line of ugly partisan battles over the selection of federal judges. The judicial confirmation process, almost everyone agrees, is a mess. To fix it, the Senate needs to adopt new and creative rules to remove the choice of judges from politics.

Confirming or rejecting the President痴 nomination of an individual to the federal courts is not a political act. The Constitution gives the Senate unique responsibilities in evaluating potential judges because the framers imagined Senators as responsible statesmen who, in performing these duties, could rise above the tussles of ordinary politics. The Senate fails its constitutional obligations when in considering judicial nominees it divides along party lines and treats confirmations as akin to hashing out legislation.

Politicizing judgeships denies the judiciary its merited respect as one of the three branches of government. Americans also deserve better. The judiciary is the branch of government that makes the most personal and lasting impact on the lives of many citizens, including those subject to a search warrant, charged with a crime, or denied civil rights. We are entitled to judges who will best serve justice, not those blown in by the current political winds.

To take politics out of the confirmation process, Senators need to adopt for themselves a set of specific rules, binding on Democrats and Republicans alike, that will govern how they will handle all future judicial nominees. The problems of the current political free-for-all are abundantly clear: Nominees languish in committee for months or years. Votes on one nominee are conditioned on promises to confirm another nominee or to favor extraneous legislation. Debates erupt over which records are relevant and which questions proper. Speculation abounds about secret plans to promote present candidates to higher and more powerful judgeships. Meanwhile, judicial vacancies imperil the performance of the courts.

Implementing rules to fix these problems is well within the means of the Senate, a body with a remarkable record of successful self-regulation and currently almost evenly split between Republicans and Democrats. That the Senate steadfastly permits forty-one of its members to delay indefinitely a final vote demonstrates its capacity for self-government. Americans across the political spectrum also care deeply about the quality and functioning of the judiciary and stand ready to help develop workable procedures for evaluating candidates for judicial office.

Some of the needed rules are obvious. Delay frustrates members of both parties. The Senate should commit to bringing all future candidates to a final vote within a fixed period of time, perhaps sixty days from nomination. Senators who believe they lack sufficient information to evaluate a candidate within this period can and probably should vote against confirmation. There exists no shortage of legal talent: moving nominations along quickly will allow the Senate to consider more of the many people who, if nominated by the President, could potentially make fine judges but under current procedures remain entirely off the radar.

Other problems will require the Senate to think very broadly and creatively. Skirmishes over a nominee痴 record may require rules specifying the minimal information a candidate must provide as well as questions that are off-limits. Senators worry about judges timing their retirement to give a President of their own party the opportunity to nominate their replacement. To address this problem, the Senate could require candidates for judicial office to commit to retire from the bench at a certain age.

The Senate may need particularly strong rules to deal with the political maneuvering that results from fears about today痴 nominee, if confirmed, being soon elevated to a higher court. One solution would be for the Senate simply to prohibit judicial promotion: refusing to confirm anybody who has ever previously served as a federal judge. Such a rule would mean losing the advantages of appellate judges obtaining experience in the lower courts. But many excellent judges, including Supreme Court justices, have come directly from private practice, teaching, a state court judgeship, or government service. Prohibiting elevation would also put the Senate痴 focus back on a nominee痴 fitness to serve on a given court rather than a speculative future court, as well as reduce the risk that the nominee, once confirmed, would decide cases with an eye to promotion. The Senate痴 evaluation of Miguel Estrada would surely be smoother and more in line with the Senate痴 constitutional responsibilities if Senators knew he could not later be confirmed to the Supreme Court and the only issue were his qualification to serve on the D.C. Circuit.

In order to discourage the President from nominating politically divisive candidates, the Senate should also explicitly adopt super-majority confirmation voting. Nothing in the Constitution requires the Senate to confirm judges by a simple majority of its members; if sixty-five or seventy votes were needed, efforts would shift from the present political maneuvering to cooperation.

When it decides on judges, the Senate is not meant to be a political body. In order to step out of politics, Senators need to put in place and adhere to confirmation rules that make justice the only goal.

Jason Mazzone, a Graduate Fellow at Yale Law School, will be an Assistant Professor at Brooklyn Law School teaching constitutional law in the fall of 2003.

April 14, 2003


JURIST Guest Columnist Jason Mazzone is a Graduate Fellow at Yale Law School and will be an Assistant Professor at Brooklyn Law School teaching constitutional law in the fall of 2003.