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Carl Tobias

The New Postpartisan Selection of Federal Judges: President Obama Displays His Commitment to Ending the Confirmation Wars


Thursday, April 2, 2009

Recently, President Obama nominated United States District Judge David Hamilton to an Indiana-based vacancy on the U.S. Court of Appeals for the Seventh Circuit. The selection of Judge Hamilton is a valuable sign that Obama will fulfill his campaign promise to reduce the divisive partisanship that has troubled federal judicial selection.

The Chief Executive can substantially influence appointments because the Constitution expressly assigns the President much responsibility for judicial selection. The process that Obama applied in choosing Judge Hamilton strongly evidences his commitment to turning the page on the judicial confirmation wars that have plagued the nation for so long.

Seeking to Solve a Twenty-Year-Old Problem: Bipartisan Selection Is a Key Step

Accusations and recriminations, divisive partisanship, and non-stop payback have riven the process of judicial selection for 20 years. Democrats complained that President George W. Bush had tapped conservative nominees who were not consensus candidates, and often failed to consult senators from the areas in which vacancies opened before submitting nominees. Bush even renominated some candidates opposed by senators who were his fellow Republicans. Meanwhile, the GOP asserted that the Democratic Senate majority did not promptly review Bush nominees, nor did it expeditiously schedule Judiciary Committee hearings and votes or Senate floor debates and votes on the nominees.

The Obama Administration ought to employ bipartisan selection – which would include consultation with local senators, regardless of their party -- for numerous reasons. To begin, Democratic and Republican cooperation should foster the confirmation of excellent jurists – on the theory that both parties will focus more on merit than ideology. Moreover, lengthy vacancies undermine the prompt, economical and equitable resolution of cases, while cooperation improves and expedites the confirmation process. Finally, partisan disputes erode public respect for the Chief Executive, the Senate, the nominees, and the judges who are eventually confirmed.

The Hamilton Nomination as an Example of Bipartisan Judicial Nomination and Confirmation

President Obama has instituted several measures that should foster bipartisanship and remedy the counterproductive selection dynamics witnessed in prior administrations – as the Hamilton nomination clearly shows.

First, Obama astutely maximized the value of consultation with both parties by seeking input from both Indiana Senators, Richard Lugar (R) and Evan Bayh (D), before the formal nomination of Hamilton. Senator Lugar stated, "I enthusiastically support the Senate confirmation of David Hamilton [who has served] with distinction as U.S. District Court Judge.' Senator Bayh observed: "I was proud to work side by side with Senator Lugar to recommend Judge Hamilton for this lifetime appointment and President Obama is right that Democrats and Republicans can work together to put highly qualified jurists on the federal bench. Judge Hamilton is an exceptional jurist who has demonstrated the highest ethical standards and a firm commitment to applying our country's laws fairly.' Such endorsements should pave the way for a harmonious confirmation.

Second, Hamilton's nomination shows that the Obama Administration will tap consensus nominees who are highly intelligent, ethical, diligent and independent, and who possess a balanced judicial temperament. The President revealed some of his selection criteria when he said, "Judge Hamilton has a long and impressive record of service and a history of handing down fair and judicious decisions. He will be a thoughtful and distinguished addition to the 7th Circuit.'

Indiana practicing attorneys and law professors, too, lavished praise on Hamilton. The president of the local Federalist Society, a conservative legal organization, said that he considers the judge "an excellent jurist with a first-rate intellect. He asks tough questions to both sides and he is very smart.' These perspectives suggest that the White House is attentive to concerns regarding nominees' political views, an issue that has bedeviled selection, and is seeking candidates like Hamilton who can draw praise from both sides of the ideological divide.

Democrats Should Seek to Break the Detrimental Cycle, Despite a Large Senate Majority that Might Allow Them to Confirm Some Controversial Candidates

In the future, more crucial steps must be taken if the president's plan for ending partisanship is to succeed. President Obama must cooperate with GOP Judiciary Committee members, such as Arlen Specter (Pa.) and Orrin Hatch (Utah), because that panel has major confirmation responsibility and the power to facilitate confirmation. For instance, President Bill Clinton's consultation with Hatch, when Hatch led the panel, fostered the smooth approval of Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer.

Democrats and Republicans in the Senate – and across the nation -- should be receptive to, and supportive of, the President's overtures. The Senate ought to adopt these ideas, although the Democrats have a large majority, because the proposals could break the deleterious cycle, should facilitate selection and confirmation, and would help the courts and the nation.

In sum, President Obama pledged to restore bipartisan judicial selection and Judge Hamilton's nomination shows that he will keep this vow. If others follow Obama's lead, bipartisanship should limit the vicious dynamics manifested for two decades, enhance the delivery of justice, and improve citizens' regard for the federal government and for the federal courts in particular.

Carl Tobias is the Williams Professor at the University of Richmond School of Law and a FindLaw guest columnist.

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