Judging the Lame Duck Congress

Commentary

Judging the Lame Duck Congress

November 17, 2008 08:01:00 am

JURIST Guest Columnist Carl Tobias of the University of Richmond School of Law says that in the face of the American electorate's desire for "change" and the need to build some measure of bipartisan consensus after a divisive campaign season, the new "lame duck" session of Congress might profitably focus on questions involving the federal judiciary …

The November 4 federal elections have left unclear precisely what, if anything, the 110th Congress can achieve in the lame duck session that convenes today. The inevitable jockeying for advantage, as the Democrats await their enhanced Senate and House majorities in the 111th Congress and Executive Branch control, suggests that little apart from economic measures will receive effective treatment before January. However, if Democrats cooperate with Republicans in a few areas which are critical to the federal courts, they could secure immediate and long-term benefits for the political parties, the judiciary and the country.

Judicial selection is an obvious field where Democrats may cooperate with Republicans and make progress. There are presently 42 federal court openings for which President George W. Bush has nominated 26 candidates. The Democratic Senate majority should decide which nominees are acceptable because they are very smart, independent and diligent, have moderate ideological perspectives and possess balanced judicial temperament, while Democrats should help confirm the nominees. The majority can do so with prompt floor votes on nominees the Judiciary Committee favorably considers, expeditious approval of those awaiting panel votes and swift hearings for the remaining nominees. An instructive example is Gregory Goldberg whom Bush nominated to the U.S. District Court in Colorado, which has two of seven seats open and two new judges approved in September.

Another important concept would be passage of a thorough judgeships bill, the first comprehensive legislation since 1990. The Judicial Conference has recommended that Congress authorize more than 60 new appellate and district court positions, suggestions that the courts’ policymaking body premises on conservative estimates of work and case loads. Confirming nominees and approving and filling new judgeships would enable the judiciary to resolve lawsuits more promptly, inexpensively and fairly.

A related notion would be passing a measure that increases federal judges’ compensation. Protracted legislative inaction on judicial salaries has eroded many judges’ standard of living, prompted some jurists to retire early or quit and discouraged strong candidates from even considering judicial service. Adoption of the judicial pay legislation could prevent experienced judges from leaving the bench and would encourage a broader pool of excellent candidates to contemplate judicial service.

The American electorate clearly expressed support for change on November 4. Democrats must respond to this call for reform. One valuable starting point would be the federal judiciary in the lame duck session which opens today. If Democrats work closely with Republicans on federal courts issues, the parties can begin restoring public confidence in Congress and earn the trust which the public bestowed on election day.

Carl Tobias is the Williams Professor of Law at the University of Richmond
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Martin Luther King Jr. wrote his Letter from Birmingham Jail

On April 16, 1963, an incarcerated Martin Luther King, Jr. (arrested for demonstrating in defiance of a court order) wrote his Letter from Birmingham Jail in response to a published statement by eight fellow clergymen from Alabama.

Part of the letter read: We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we stiff creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging dark of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness" then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. Read the full text of the Letter.