From square one, let’s stipulate a couple of things necessary to engage in a rational debate about how the relatively straightforward process of the nomination and confirmation of federal appellate court judges has become a cesspool of partisan showmanship, procrastination, and character assassination for those individuals who agree to be nominated to the federal bench.
First, neither the Democratic or Republican parties can claim an inch of high ground on the judicial confirmation front. Both parties have regularly engaged in this behavior. Second, slow rolling or blocking judicial nominations disrupts the natural balance that the founding fathers intended by designing and adopting a system that was intended to provide a very wide ideological and partisan balance on the federal court bench.
Then, of course, is the issue of the personal damage this public spectacle does to the judicial nominees – many of whom see their lives and careers reduced to exaggerated political caricatures in what has become an increasingly mean-spirited and demeaning exercise.
The latest is Illinois native Merrick B. Garland, the chief judge for the U.S. Court of Appeals for the District of Columbia Circuit. Garland, 63, is a graduate of Harvard and Harvard Law School and is a former U.S. Justice Department lawyer who supervised the investigations in the Unabomber case as well as the Oklahoma City domestic terrorism bombing.
President Barack Obama has nominated Garland as the successor to the late U.S. Supreme Court Justice Antonin Scalia. Scalia, the bastion of conservatism on the nation’s highest court, died of apparent natural causes at a Texas hunting lodge on Feb. 13 at the age of 79 after nearly 30 years of service on the court.
Will Garland get a confirmation hearing from Republicans controlling the U.S. Senate? According to Senate Majority Leader Mitch McConnell (R-Kentucky), that’s highly unlikely.
Why? Because Scalia’s death puts the conservative majority controlling the Supreme Court at risk and any Obama appointee – even a so-called “moderate” like Garland – likely strengthens the liberal wing of the court on bedrock judicial issues like reproductive rights, guns, and voting rights.
This battle over philosophical and partisan control of the court – and that’s unquestionably what it is – will play out against the backdrop of the 2016 presidential election cycle. It’s a ready-made issue for both parties. It’s likely to further engage voters on both sides.
But is this practice one that’s the more the province of one political party or the other? Absolutely not. Both parties are stone guilty and the judicial nomination paths of two talented, able and qualified Mississippi jurists illustrate that point.
Back in 2001, then President George W. Bush nominated U.S. District Judge Charles Pickering of Laurel to the U.S. 5th Circuit Court of Appeals. The Senate Judiciary Committee, then under Democratic control and led by U.S. Sen. Patrick Leahy of Vermont, blocked confirmation. When the GOP took control of the Senate in 2003, Bush again nominated Pickering.
This time, Democrats successfully filibustered action on Pickering’s nomination. In 2004, Bush gave Pickering a recess nomination that gave him less than a full year to serve on the 5th Circuit Court of Appeals.
Pickering was falsely accused of racism after a lifetime of demonstrable service in the cause of racial reconciliation in Mississippi. But it was enough to keep him from a full term on the bench.
Republicans got in on the action in 2010 after Obama nominated then-Mississippi Supreme Court Justice James Graves, Jr., to the 5th Circuit Court of Appeals. Republican controlling the Senate Judiciary Committee failed to act on the nomination in 2010. In 2011, Obama renominated Graves and this time the Senate confirmed the nomination.
The U.S. Senate has the power of advice and consent in the judicial nomination process, but the current iteration of “advice and consent” goes far beyond that. Conservative or library, Republican or Democrat, a U.S. president has the duty to fill judicial vacancies in a timely manner.
The “Beltway Shuffle” on judicial nominations is something that impedes the natural philosophical balance that the concept of judicial appointments was intended to implement.
Sid Salter is a syndicated columnist. Contact him sidsalter@sidsalter.com