Since the Constitutional Convention in the late 1700’s, men and women in the United States have wrangled over how to form a government and how to govern. Politics is nothing new.
However, the heavy insertion of politics into the judicial nomination process has reached new heights over the past 20 years.
Federal judges are nominated by the president and confirmed by the United States Senate. This is written in the Constitution. Also, the Senate has the responsibility to “advise and consent.”
While political leanings and judicial philosophy have always been taken into consideration by the executive and legislative branches of our government, these two criteria now form the only qualifications for a prospective federal judge; including United States Supreme Court Justices.
This state of the judiciary was amplified by the recent comments made by Supreme Court Justice Ruth Bader Ginsburg. The 81 year old cancer survivor said that those who are calling on her to retire are “misguided.” “Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not appoint anyone I would like to see in the court.”
What she means is that a very liberal justice could not be confirmed under the present political environment. She is right.
Unfortunately, when the next Republican president is elected, he or she will not be able to get a strong conservative confirmed either.
Filibusters, character assassination, and speeches made by arrogant members of the Senate Judiciary Committee comprise the current judicial nomination process. It is a shame.
In the past, the Senate primarily looked to other factors when confirming federal judges. These included character, intelligence, public service experience, and judicial experience. Now, these factors are all but obsolete in the judicial nomination process.
Two examples will illustrate the vast changes that have taken place:
1. Scalia – Justice Scalia is the most brilliant member of the U.S. Supreme Court. He is also the most “conservative.” When President Reagan nominated him in the mid-1980’s, he was confirmed by the Senate by a unanimous vote.
2. Ginsburg – Likewise, when Justice Ginsburg was nominated by President Clinton in the early 1990’s, she was confirmed by a unanimous vote. Every Senator knew that she had been involved with left wing organizations before she became a Supreme Court Justice. Every Senator knew that she would be a liberal on the Court. But, her character and integrity carried the day.
As a right wing conservative myself, I would like to see the appointment of federal judges who share my political views and judicial philosophy. However, I believe that when a sitting president, Democrat or Republican, nominates a person for a federal judgeship, that person’s character should be the most important consideration by the Senate. The confirmation analysis should not solely consist of Senators trying to predict how the person will vote on cases involving hot button topics like abortion, gay rights, or free speech.
I suppose that one theory of how we arrived at such a polarizing process of judicial confirmations would be that our country itself has become a nation divided. Currently, about half of our citizens vote for Democrats and the other half for Republicans. This has been the true for the last 20 years.
It will take a strong president coupled with a majority of honorable senators to reverse the current judicial nomination process.
That is a tall order.