December 30, 2004

Much Ado About Judging

by Armen

It's almost become an unwritten rule that if you don't have something to say about the nomination of Federal judges you're not fully a member of the blogsphere or at least the blawgsphere (Howard Bashman does an excellent job of keeping tabs on most such commentaries). Well, I suppose it's time for me to satisfy this rule.

This week I had two interviews with U.S. District Court judges for summer externships. While I could ramble for hours about the subway rides in LA, the panic in the eyes of Angelinos as Stormwatch 2004 is proclaimed with a few inches of rainfall, etc., I'll limit myself to the less interesting stuff. Specifically, during the application process I learned that Judge Percy Anderson was one of the first nominees by the President to come up through a bipartisan nominating commission set up by Sens. Feinstein and Boxer of California with the administration.

After some soul searching (which would not have really happened had PG not prodded me to do so) I've come to the conclusion that this is actually a very brilliant idea, but it can only work at the District Court level. Needless to say the benefits for Democrats in the Senate and elsewhere are obvious. Any system that makes the appointments less politicized is good because it means the nominees are not as political. More generally, this approach is very decentralized, meaning nominees will have strong ties to the areas in which they will preside. While this has not been a problem in any particular administration, it is something worth noting because it ties in to my next point. The process brings nominees to the bench who reflect the local population's views to the extent they matter. To illustrate, imagine if someone like Judge Pickering was nominated to the Central District of CA. All hell would break loose. Did any such thing happen when he was a district judge in Mississippi? Nope. Anyway, you get the idea.

Now I don't know anything about Judge Anderson's rulings or his party affiliation, but I know his nomination did not draw any negative attention to the administration. On the contrary, it has kept Democrats in the Senate quite pleased (see e.g. Pat Leahy's remarks during the hearing). As such, Dems do not have any ammo to contest most nominations...even the ones that really should be contested. This is why the commission process is a stroke of genius.

Naturally, I considered the process at the U.S. Court of Appeals and for the SCOTUS. Unfortuantely all nominations to those courts are fairly highly politicized. Any bipartisan commission that's created will simply add an extra layer of bickering. This time even before nominees are announced people will have to fight political battles. But the larger question that I myself have not answered is why? Why do we care so much about these nominations? Clearly these courts make some decisions that are important to us who have political views one way or another. Yet those decisions are an incredibly small percentage of all decisions made. Even at the SCOTUS, how many times a year would we hear something about a decision handed down if we were not in the legal community? Ask the lay person what recent decisions come to mind...affirmative action, Gore v. Bush, and maybe sodomy if they religiously listen to Nina Totenberg or something. If such few decisions matter, then worry about who sits on the court? Are these decisions really THAT important? Do we as a society really care more about getting into law school than presenting an ID to a police officer?

So the problem of the day is, how is it that a bipartisan commission system could never work for the higher courts when all indications are that it should?

December 30, 2004 04:31 AM | TrackBack

Judge Breyer was practically nominated by a bipartisan commission. I believe Orrin Hatch was like his biggest supporter besides Ted Kennedy. Just goes to show how much more conciliatory Pres. Clinton was with his judicial nominees. Remember the Dems controlled the Senate then. Now I don't think any but the most radical Republicans are unhappy with Breyer. Imagine Bush putting up such a nominee. . . . keep imagining, because it ain't happening.

And everytime the Bushies start with their BS about how so many more of Clinton's nominees were confirmed, just remember that Clinton's nominees were on the conservative side for the most part. Hell, on the Ninth Circuit, there are really only two or three classic "liberals" that came from Clinton. And there are more conservatives that came from Clinton, e.g., Tallman, Gould, and Rawlinson (all seen by court-watchers as decidedly in the conservative camp). Others are moderate-conservatives such as Graber, etc. OK, I'm rambling . . .

Posted by: Cincinnatus at December 30, 2004 08:21 PM

As Gore v. Bush illustrated, the problem with the conservative republican approach to judging is their hypocrisy. They talk about neutrality but they practice activism. This hypocrisy lies at the divisiveness of the population. There are those who naively swallow the lies of the conservatives and those who recognize how radically activist these neocons really are.

Posted by: Ron at January 1, 2005 10:14 AM

You're either insane or don't actually know what constitutes "conservative" if you call Graber a conservative, or assume that mainline conservatives enjoy Breyer, particularly with his insistence on international "law" guiding Supreme Court decisions.

Tallman is fairly conservative, but this wasn't because Clinton was some glorious bipartisan hero. Rather, Tallman's nomination was the result of horse-trading in the Senate for some appointments to (I think) the Tennessee Valley Authority.

Rawlinson and Gould are moderates.

Posted by: The Angry Clam at January 4, 2005 03:40 PM
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