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BICKERING OVER PICKERING IS GOOD FOR
DEMOCRACY'S HEALTH

Professor William G. Ross
University of Notre Dame Law School
Editor, JURIST Forum

The new Republican President, elected in a photo-finish race in which judicial appointments were a major issue, made a big political gamble by sending the judicial nomination of a conservative Southern gentleman to a Democratic Senate that was already piqued about rough Republican treatment of judicial nominees during the previous Democratic Administration. Although the soft-spoken, bespectacled nominee attracted little adverse attention during his long service in the lower federal judiciary and received the highest ranking from the American Bar Association, his critics allege that he was reactionary on many issues, particularly race, and that his nomination sent a dangerous signal about the attitudes of the new Administration. They also allege that he engaged in unethical judicial conduct.

Accordingly, the Senate in November 1969 rejected President Nixon痴 nomination of Clement F. Haynsworth, Jr. by a vote of 55 to 45.

Haynsworth? Yes. The present controversy over the nomination of U.S. District Court Judge Charles W. Pickering to the United States Court of Appeals for the Fifth Circuit is in many ways strikingly similar to the fight over Nixon痴 nomination of U.S. Court of Appeals Judge Clement Haynsworth to the U.S. Supreme Court in 1969.

There is, however, one major difference the firestorm over Haynsworth involved a U.S. Supreme Court appointment while the tempest about Pickering concerns a nomination to a lower federal judgeship. When Nixon nominated Haynsworth in 1969, even Supreme Court nominees rarely attracted substantial controversy or careful scrutiny from the Senate or public interest groups. Today, even lower federal nominees are becoming the subject of pitched political battles.

Many commentators have deplored the growing controversies over judicial appointments as evidence of unhealthy partisan rancor and a dangerous politicization of the judiciary. The principal reasons for this phenomenon may be more benign. The increased attention to federal judicial nominations reflects a more sophisticated public awareness of the judiciary痴 vast importance in American life. Persons of all political persuasions are increasingly cognizant that the decisions of the lower federal courts have important political consequences. Since the U.S. Supreme Court now hears only about cases each seventy cases each year, the lower federal courts are the courts of last resort for all practical purposes on many politically-charged issues. Although lower federal judges are supposed to follow Supreme Court precedent, even the most restrained and conscientious judge will encounter many issues in which there is substantial leeway for discretion in which the judge痴 political predilections cannot help but to influence her decisions, regardless of much the judge might strive to decide the case on neutral principles. Although the law changes incrementally, even glacially, the predilections of the judges who make the often subtle rulings that slowly shift the law in new directions are tremendously important.

The Senate痴 consideration of a nominee痴 ideological predilections is especially appropriate since Presidents base their nominations at least in part upon political and ideological considerations. Partisan considerations are an undeniable factor in the nomination process, even though the vast majority of judicial nominees have the requisite qualifications of intellect, experience, and character. Presidents increasingly tend to seek nominees who are ideologically compatible. Moreover, the home-state senators to whose recommendations Presidents often defer in accordance with the traditional practice of 都enatorial courtesy often use judicial appointments as a means of rewarding service to a political party. There is no reason why the pungent political aromas that often permeate the nomination process should vanish into a politically antiseptic confirmation process.

Indeed, consideration of ideological factors in the confirmation process seems more likely to edify public respect for the judicial appointments process than the use of more overtly partisan considerations in the nomination process. Although some critics of a rambunctious confirmation process complain that political scrutiny of judicial nominees gives too much power to special interest groups on the right, center, and left -- that in recent years have become increasingly vocal in expressing opinions on judicial nominations, senators ultimately have the power to vote as they see fit. To the extent that special interest groups may influence the manner in which senators vote, such influence ought to be regarded as an example of healthy participation by citizens in the political life of this democracy.

What is disturbing about political controversy over judicial nominations is not the controversy itself but rather the refusal of many partisans to acknowledge with consistency the political role of the Senate in confirming judicial nominees. Numerous conservatives who understandably were hostile to certain Clinton nominees some of whom were much more leftish than Democrats ever dared to admit now express righteous indignation because liberals are applying political scrutiny to Bush痴 nominees. And many of the same liberals who are properly questioning the political leanings of Bush痴 nominees were alleging only last year that Republicans were obstructing the confirmation process by criticizing Clinton痴 nominees.

The Senate and public interest groups should be honest in their objections to a nominee. They should directly confront ideological issues rather than cloaking political objections in disingenuous expressions of concern about the character of nominees or protestations that the nominee has political beliefs that are freakish. It is particularly annoying that both liberals and conservatives have often insisted that they will tolerate nominees with whom they have substantial disagreements and will oppose only nominees whose views are out 登ut of the mainstream. Since no President in living memory has nominated anyone whose political views are truly outre, allegations that a judicial nominee is 登ut of the mainstream tend to stigmatize and marginalize certain nominees and represent a refusal to admit frankly the political character of the confirmation process. How much better for critics of a nomination to acknowledge that they are opposing a nomination because the nominee痴 political views have simply strayed too far from their own predilections a perfectly legitimate reason for opposing a nomination.

This does not mean that opponents of a nomination cannot raise legitimate concerns about a candidate痴 character as a means of trying to defeat a nominee for political reasons. Democrats are correct, for example, to question Pickering about his alleged ex parte communication with the Justice Department in connection with a case that was pending before him even if their principal objection is his politics rather than his character. Even if Pickering demonstrates that he engaged in no misconduct or in misconduct was not sufficiently serious to warrant judicial discipline or rejection of his nomination, the Senate has a duty to investigate and seriously consider any allegation that reflects badly on the character or conduct of a nominee. If the charge is frivolous, a nominee ought to be able to vindicate himself. Far from detracting from the dignity of the judge or the judiciary, the ventilation of such issues is likely to increase public faith in the integrity of the judicial system.

Since federal judges serve for life and are removable from office only pursuant to the cumbersome and rarely invoked process of impeachment, it is imperative that the Senate assure itself that only persons of the highest caliber are appointed to the federal bench. In determining whether a nominee has the requisite character to serve as a federal judge, senators therefore have a duty to investigate allegations or even rumors that would cast doubts upon the nominee痴 fitness. The nominee will have ample opportunity to explain his actions.

Even when a nominee is unfairly accused of personal misconduct and is unable to exonerate herself to the Senate痴 satisfaction or where the Senate dishonestly uses such misconduct as a pretext for rejecting a nomination, such rejection is merely a denial of promotion rather than a demotion. Since the standards of evidence are much different than those required for impeachment of a judge or disbarment or a lawyer, the Senate痴 rejection of a nomination should not impose any ignominy. A nominee who is truly innocent of misconduct should be able to muster enough evidence in her favor that her reputation should emerge unscathed, especially in the eyes of the people whose opinions should matter most to the nominee his family, colleagues, and neighbors.

Judge Pickering, for example, has had no shortage of defenders, and the many eloquent testimonials about his character, particularly those from African-Americans who have vouched for his courage and sensitivity on racial issues, may ultimately burnish his reputation far more than his critics may tarnish it. Similarly, attacks by segregationist senators on the character of Thurgood Marshall when he was nominated to the U.S. Court of Appeals in 1965 and the U.S. Supreme Court in 1967 have in no way diminished Marshall痴 honored place in history. Indeed, Marshall痴 graceful responses to those attacks have enhanced it.

Furthermore, nominees who are rejected can continue to enjoy productive careers at the bar or on the bench often at a higher rate of compensation than if their nominations had been confirmed. Judge Haynsworth is an example. Defeated in the wake of expressions of concern about his record on race and allegations of a minor ethical lapse that has been overlooked or excused in many other judges, he accepted his rejection philosophically, correctly recognizing that fate had thrust his nomination into the buzzsaw of politics. He continued for many years to serve with distinction on the U.S. Court of Appeals, where memories of the confirmation battle diminished neither his dignity or his effectiveness.

Accordingly, there is scant merit in the widespread allegations that liberal and conservative activists who are increasingly involved in the judicial appointments process routinely indulge in 田haracter assassination. Although criticisms of some judicial nominees have been unfortunately hyperbolic and ad hominem Bork remains the classic example -- I have faith that the relatively small percentage of citizens who pay attention to judicial confirmation battles are intelligent enough to distinguish between smears and legitimate criticism.

Moreover, even when the Senate rejects a 堵ood person, the President is likely to find another competent and honorable person to nominate in her place, even if the successful nominee is more moderate in his or her political beliefs than defenders of the rejected nominee would prefer. There is no shortage of judicial talent in the swelling ranks of the American bar.

Vigorous confirmation hearings also provide senators with an opportunity to fulfill their constitutional duty to offer 殿dvice to the President in connection with nominations, and also provide a forum in which senators may offer advice to nominees. As various scholars have pointed out, confirmation proceedings provide a unique opportunity for senators to speak directly to judges and judicial nominees about judicial issues. If senators are concerned about the political implications of judicial decisions, confirmation hearings enable senators to express those concerns and can promote useful dialogue between nominees and senators.

Many critics of robust scrutiny of judicial nominations have cautioned that an intense confirmation process will inhibit well qualified persons from seeking federal judgeships. This fear is unfounded. One could more easily argue that a process which lacks rigor will attract rogues. A nominee who has led a life of probity and who has compiled an honorable record of service in the legal profession should have no reason to fear anything more than annoyance from even the most feral senator. If there is any recruitment impediment an open question in view of the generally high caliber of both Bush and Clinton nominees it arises from the relatively low salaries of federal judges, a danger about which Chief Justice Rehnquist recently warned again in his annual State of the Federal Judiciary message.

Moreover, few nominees have reason to fear controversy because the Senate confirms the vast majority of nominees with great deference probably too much deference. Indeed, with an average of forty vacancies each year among the nation痴 more than eight hundred federal judgeships, the Senate simply lacks time to make a major issue out of all but a handful of judicial nominations. Moreover, the chances of outright rejection very slim the Senate voted down only one judicial nominee during the eight years of the Clinton Administration, although many other nominations expired from inaction.

The only legitimate grievance of nominees is that the Senate痴 frequent delays in considering nominations cause hardships to careers which are placed in limbo during protracted deliberations, a situation that reached distressing proportions during the Clinton Administration, when some nominees twisted in the wind for years. Senate Judiciary Committee Chair Patrick J. Leahy has promised to try to expedite consideration of Bush痴 nominees.

The promptness of the Senate痴 consideration of nominees has been slowed by the Bush Administration痴 exclusion of the ABA from the nomination process. Last March, the Bush Administration announced that it would terminate the longstanding practice by which presidential administrations consulted the ABA before making any judicial nominations. Under this process, the ABA had largely completed its review of nominees before nominations were made, enabling the Senate to use the ABA痴 evaluations from the very start of its deliberations. Senator Leahy has complained that the elimination of the ABA from the nomination process delays the Senate痴 consideration of nominations by months since the ABA does not now begin consideration its consideration of a nominee until after a nomination is already made.

Although the Senate needs to continue to increase its pace of consideration of judicial nominations, such nominations are too important to rush. Since federal judges serve for life, careful deliberation is essential. Accordingly, it is appropriate for the Senate to take the time to review Pickering痴 voluminous unpublished opinions. Although some Republicans allege that this constitutes harassment or a fishing expedition, critics of the nomination need to learn all they can about the nominee if they plan to oppose his nomination with intensity. Such review is particularly appropriate since one of the principal allegations of Pickering痴 critics is that the judge has a high rate of reversal by the Court of Appeals. Indeed, review of unpublished opinions promotes fairness to the nominee insofar as it reveals the nominee痴 record more completely and less selectively.

Careful political scrutiny of lower federal judicial nominees by senators, public advocacy groups, and interested citizens is becoming a regular feature of the judicial appointments process. Growing public recognition of the high stakes of judicial appointments precludes any return to the days when lower federal judicial appointments were the outcome of a quiet and obscure process involving only home state senators and a handful of presidential advisors. A democracy should welcome this change.


William G. Ross, a professor at the Cumberland School of Law of Samford University, is currently a visiting professor at the University of Notre Dame Law School.

February 26, 2002

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EDITOR

JURIST Forum Editor William G. Ross is a professor at the Cumberland School of Law of Samford University, and visiting professor at University of Notre Dame Law School for 2001-02. Professor Ross practiced law in New York City for nine years before joining the Cumberland faculty in 1988. He is the author of two books about American constitutional history and a book about the ethics of time-based billing by attorneys. His numerous law review articles concern ethics, legal history, and the federal appointments process. Professor Ross graduated from Stanford in 1976 and the Harvard Law School in 1979.