President-elect Barack Obama vowed in his campaign to reduce the toxic partisanship that has poisoned the federal government. One critical way to make good on this promise and provide an antidote to longstanding toxicity is through bipartisan judicial appointments.
Accusations and countercharges, partisan division and incessant paybacks have punctuated the choice of judges for 20 years. They've gotten the US nowhere.
Democrats accused President Bush of tapping ideologically conservative nominees who were not consensus picks and refusing to consult senators from the states where vacancies arose prior to submitting nominees. Mr. Bush actually nominated several candidates multiple times, even after GOP senators had clearly opposed the individuals.
Republicans contended that Democrats did not promptly assess Bush administration nominees or expeditiously schedule Judiciary Committee hearings and votes or Senate floor debates and votes. Indeed, the 110th Senate's Democratic majority granted no hearings to many appeals court nominees.
A plethora of reasons suggests why the nascent Obama administration should not cave into any pressure that might come from the Democratic majority or the Republican minority but, rather, cultivate bipartisanship in judicial selection.
First, Democratic and Republican cooperation will foster the confirmation of excellent judges. Second, protracted judicial openings undermine the judiciary's attempts to resolve cases promptly, inexpensively, and fairly. Third, partisan bickering over appointments undercuts public respect for the president, the Senate, the nominees, and the judges who are ultimately confirmed.
How to bridge the divide?
Mr. Obama should begin by soliciting guidance on candidates from Democratic and Republican senators, especially from the states where vacancies materialize, before nominating candidates formally.
He should keep in mind that senior Republican Judiciary Committee panel members, such as Arlen Specter of Pennsylvania and Orrin Hatch of Utah will assume much responsibility for GOP participation in the Senate approval process. Indeed, President Bill Clinton's consultation with Senator Hatch when he led the committee prompted the smooth confirmation of Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer.
Moreover, the White House ought to forward consensus nominees, who are extremely intelligent, ethical, and diligent, and who possess measured judicial temperament.
The president should also cooperate with the Senate and House to expeditiously pass a comprehensive judgeships bill that would authorize more than 60 new appellate and district court seats. This proposal embodies recommendations by the Judicial Conference, the federal courts' policymaking arm, which are premised on conservative estimates of judges' work and case loads.
Congress has not enacted thorough judgeships legislation since 1990, while passage would allow the federal bench to resolve cases more swiftly, economically, and equitably. The chief executive and lawmakers might even consider and inaugurate a bipartisan judiciary that would permit the GOP to recommend a small percentage of nominees.
Obama pledged to restore bipartisanship. Federal judicial selection is a critical area where he can honor this promise and ameliorate unproductive partisanship.
It's in the best interest for both Democrats and Republicans to be receptive to the bipartisan overtures that the president extends. Despite a commanding Democratic Senate majority, a bipartisan approach will end the counterproductive dynamics that have plagued the process, improve the delivery of justice, and increase respect for all three federal branches.
Carl Tobias is a professor at the University of Richmond School of Law.