The June ABA Journal cover story focuses on the confirmation "logjam" that has left four vacancies on the U.S. Court of Appeals for the Fourth Circuit -- three of which are classified as "judicial emergencies" and one of which has been open for almost 15 years. (There were five vacancies when the article went to press, but Steven Agee was recently confirmed --the first confirmation to the Fourth Circuit since 2003.) Given there are 15 seats on the Fourth Circuit, the court is operating at less than 75 percent strength.
As the article makes clear, Senators from both parties have contributed to the obstruction of fourth Circuit nominees for some time. Senator Jesse Helms, in particular, kept one North Carolina seat open for over six years during the Clinton Administration because Senate Democrats had refused to confirm his protege Terrence Boyle to the court when nominated by the first President Bush. Senator John Edwards returned the favor when President Bush was elected, blocking Boyle's confirmation as payback. And since then things have only gotten worse. The political fights over judicial nominations have steadily escalated over the past twenty years, and there is no sign it will let up soon.
The reason the nomination logjam has lasted this long is that judicial retirements have turned what was once the nation’s most reliably conservative appellate court into one split evenly—between judges appointed by Democratic presidents and those appointed by Republicans.The article also reports that the Fourth Circuit has managed to operate short-handed quite well, at least thus far.With the circuit’s ideological direction hanging in the balance, there’s been near-paralysis in Washington. The president has nominated reliably conservative lawyers to fill most of the vacancies, and the Democrat-controlled Senate has failed to act on most of the nominations. Meanwhile, the work of the circuit grinds on, with fewer and fewer judges to shoulder the burden.
Since Democratic Party leaders are feeling confident about their prospects for retaking the White House this fall, chances that any nominees beyond Agee will be confirmed before Bush leaves office in January range from slim to none, most experts say. And if the next president is a Democrat, his or her nominees could remake the 4th Circuit into a more moderate appeals court for a generation or more.
Despite the judicial shortage, the 4th circuit continues to dispose of cases quicker than almost any other circuit. But it does so while granting oral argument in fewer cases than its counterparts, and by issuing fewer substantive opinions explaining its decisions.In 2006, the 4th had an average disposition time per appeal of 91⁄2 months, which tied the 11th Circuit as the quickest in the nation. The 9th Circuit had the slowest, at nearly 16 months. The national average was slightly longer than 12 months.
Judges in the 4th Circuit also consistently rank as among the hardest-working in the federal appeals courts. In fiscal year 2006, 679 appeals per active judge were terminated on the merits. Only the Atlanta-based 11th Circuit, with 877, and the New Orleans-based 5th Circuit, with 836, ranked higher. The D.C. Circuit had the fewest, at 173. The national average was 539.
But the 4th Circuit granted oral argument in less than 12 percent of its cases in 2006, far and away the smallest percentage of any circuit in the country. The average for all circuits was nearly 26 percent. That same year, the circuit also issued the lowest percentage of published opinions, at just over 6 percent. The average for all circuits was just under 16 percent.
Chief Judge Karen J. Williams, a 1992 appointee of the first President Bush, says the court is making the best of a bad situation.
The circuit has been able to stay current with its workload so far without suffering any loss in quality—in part by relying on its senior judges, and by inviting trial judges in the 4th Circuit and senior judges from other circuits to sit by designation, she says.
But she also says it won’t be able to do so indefinitely. “While we can continue to get our work done in a timely manner for the near future, over time the vacancies on our court, if not filled, may begin to have an adverse effect,” she says.
Related Posts (on one page):
That's almost four years!
It probably doesn't matter if there are less conservative judges, because if it saves us from one more activist judge it's probably worth it.
Still, even on pragmatic political grounds, the tactic seems likely to backfire. Unless Democrats think they'll control a filibuster-proof majority after January (possible but unlikely), a potential President Obama is going to get essentially the same treatment, although he may have more success in that it will take fewer moderate Republican defections to get cloture than it would take moderate Democrats currently. Regardless of the election results, I certainly hope that the Senate acts expeditiously to confirm the new President's nominees.
(2) Given their rhetoric that both parties put on for the last series of filibusters, I will laugh considerably if the situation is reversed and Ds insist on an up or down vote while Rs insist on the minority right to filibuster.
Not that I think it matters much, but I support the minority right to filibuster because I think it leads to more moderate judges -- an intrinsic good imo. If the parties in question were rational actors, this wouldn't lead to 'logjams' since Presidents would prefer to successfully nominate moderates acceptable to 60 Senators rather than fail altogether.
Still, it is unlikely, as I say, which means that Democrats should beware getting a taste of their own medicine. A lot will depend on the qualifications and ideological credentials of the new President's nominees.
You've posted on this subject in the past, always with the theme that the Senate is keeping the judiciary short-staffed. But the logjam is due at least as much to the Administration as to the Senate.
If Mr Bush had nominated middle-of-the-road judges, and pre-negotiated their acceptance by the Senate, he could have gotten a lot more judges confirmed. Instead, as your post quotes: "The president has nominated reliably conservative lawyers to fill most of the vacancies" and gotten nothing.
More Bush Administration incompetence ... but I repeat myself.
Unfortunately, Fortunately George, you'd have to amend the Constitution to make that work for Article III judges.Fixed
pireader is merely asserting a tautology: if the Pres wants the Senate to confirm his judges, he should appoint judges that the senate will confirm.
For some reason that tautology seems wiser than most.
Funny how textual interpretation of the constitution goes out the door when it's something you want politically.
Senator Leahy's 2002 report contains the data: over 100 federal vacancies at the end of Clinton's second term.
http://leahy.senate.gov/press/200211/112002b.html
And Clinton succumbed to the fear that any hard lefty nomination would be Borked, since the libs tarred and feathered Bork, Doug Ginsburg, and Thomas before that, he expected the Repubs to do the same. Which they would have.
Basically, if Bork, Doug Ginsburg, and Thomas had been treated with dignity, we wouldn't be here. Its been back and forth partisanship ever since, with each side throwing red meat to the base while attacking any nomination on the other side that appeals to their base.
Judicial nomination are now about abortion and affirmative action now. In other words, they're about the base.
Presidents are not required to appoint people whose ideology matches up with the Senate. They ought to appoint good judges - smart, competent, thoughtful jurists, of any ideological stripe. I support Clinton's right to appoint RBG, former ACLU attorney (about as left as they come); she was confirmed, IIRC, 93-6. Roberts, who is not very far right, barely made it through his confirmation hearings.
The Dems are playing the game that they get to nominate whomever they want, but require Republican presidents to nominate people they agree with. Sick, really.
I will note that there is very, very limited damage that conservative jurists can do, and almost unlimited chaos from liberal jurists. The former write decisions that do not enshrine their ideals in the Constitution (thus requiring an Amendment to overturn); the latter write decisions that turn their own policy preferences into Constitutional dogma. Sure, there are complaints about the Ledbetter decision, but fixing that requires nothing more than the Congress to pass a different statute (one that it should have passed initially). The same can hardly be said of liberal jurisprudence - the point of which appears to be to prevent majoritiarian action.
However, I do think it's a bad idea for any court to have to operate in sustained "surge" mode by grinding the active and senior appellate Judges especially hard, and impressing (also very busy) District Judges via designation to appellate panels more frequently than normal. For roughly the same reason the static-sized military can't do an extended surge very well without sustaining long-term problems.
The ones I feel sorriest for, though? The law clerks...
Keep believing things like Dems are playing the game that they get to nominate whomever they want, but require Republican presidents to nominate people they agree with and that there is very, very limited damage that conservative jurists can do, and almost unlimited chaos from liberal jurists, and that RBG is about as left as they come while Roberts is not very far right, and you can count on this logjam continuing indefinitely.
Except for that pesky advise and consent clause.
If your state tries to do that (so unlikely, but I'll address your nonsense anyway), you are more than welcome to 1) move to a different state; 2) vote your elected officials out of office; 3) re-write your state constitution to prohibit such meddling; or 4) amend the federal Constitution to achieve the same result.
Do you really think that states would do that now? The first politician to try would be inundated with criticism.
Why not give up the posturing and say what you're really afraid of - that people will voluntarily and happily live in pro-life states?
LM,
On another thread, I posted the confirmation votes for several Justices. Instead of empty-headed snark, would you at least back yourself up?
RBG was one of the most centrist Dem-appointed judges available. Look at the DC circuit at the time of her appointment: all of the other Dems (E.g., Mikva, Edwards, Wald) were consistently to her left. The equivalent to RBG is a center-leaning Republican judge, not Roberts or Alito.
I will note that there is very, very limited damage that conservative jurists can do, and almost unlimited chaos from liberal jurists. The former write decisions that do not enshrine their ideals in the Constitution (thus requiring an Amendment to overturn); the latter write decisions that turn their own policy preferences into Constitutional dogma.
Also wrong. The conservative majority of the Supreme Court has also made decisions on constitutional grounds that overturned popularly-passed statutes. See, e.g. City of Boerne v. Flores or U.S. v Morrison just for 2 examples.
All circuits should have this type of "emergency". Maybe it makes people do their jobs.
Ginsburg is quite a lefty, any way you slice it. The fact that there are a handful of jurists who are more to the left of her does not mean that she's "moderate." Sorry.
By the way, what on earth makes you think that Roberts is an extremist?
Fact is, if you like the legislation at issue in those cases, you could still have that legislation without a constitutional amendment. Sorry.
Snark? That wasn't my intention. Empty-headed? I guess my head is what it is. My point was, given that the logjam was created by politicizing the Senate's consideration of judicial nominees, dwelling on what amounts to "but my side is right" only assures that the arguing and the logjam will continue. Do I disagree with your arguments? Obviously, for reasons others have explained above and I don't need to repeat. But that wasn't the point of my comment. And if my point wasn't as clear as I thought, maybe it just looked that way inside my head because there's nothing else there to obscure the view. (Yes, that time it was intended.)
As for anything you posted on another thread, if you want to re-post it here, I'll be happy to comment on it.
If you are going to respond to my post and not concede that you spoke too hastily, you should start by actually reading what I said, not to mention reading what YOU said.
First, your comment said that RBG was "as left as they come," not that she was left of center. My point is that she is not even close to "as left as they come", which is why I said she was one of the most centrist Dem-appointed judges available. Even on her own court there were judges far to the left of her, and those judges were to the right of judges elsewhere, such as Reinhardt. She was to the right of most Dem nominees, which is what makes her 'centrist' by Dem-appointed standards. That in turn would make her a moderate, as that term is usually used, unless you start from the assumption that no Dem nominee is moderate, which turns the word "moderate" into something silly.
Second, I never said that Roberts was an extremist. But he was certainly not one of the most centrist Republican-appointed judges. Just off the top of my head, you could pick judges like Deanell Tacha, John Walker, Harvie Wilkinson or Alex Kozinski, who are GOP appointed, and you would get four generally conservative GOP judges who are all to the left of Roberts.
Third, you wrote that "[Conservative judges] write decisions that do not enshrine their ideals in the Constitution (thus requiring an Amendment to overturn); [liberal judges] write decisions that turn their own policy preferences into Constitutional dogma." You haven't rebutted the fact that the conservative majority has done exactly what you claim that the liberal judges have done and not just in the two cases I mentioned. See, BMW v. Gore, Alden v. Maine, NY v. US, etc. The list goes on and on and on. Just because you agree with the outcomes of these decisions does not make your original point correct.
It's right there next to the clauses about unfunded mandates and limits on punitive damages.
Many of the confirmation fights right now are about judges where the ground for opposition is "we didn't choose them" - witness the Michigan fight, where several judges were held up for years because they weren't Senator Levin's in-law. Witness the delay in Peter Keisler's nomination (the Wash. Post has editorialized in favor of his confirmation).
Nick
To be fair, the argument there was that the GOP Senate had refused to confirm someone appointed by Clinton for years to a vacancy on the 6th Circuit. I think the nominee was Levin's cousin or something. Then Levin responded by blocking all attempts to confirm a Bush appointee to the same vacancy post-2000. So I don't think the opposition was really "we didn't choose them," per se. The opposition is more fairly characterized as "turnabout is fair play."
But realistically, neither party is going to confirm someone to a life-tenured position in an election year unless the nominee is fairly moderate and unobjectionable on a partisan basis, and even then only a few such folks will get through. The Dems reasonably expect to win given current polling. And even if McCain wins, McCain is not likely to pick nominees who are as far to the right as Bush -- McCain was one of the Gang of 14.
So, ultimately, I don't understand the point of this post, except to point out the obvious. I would not expect a GOP Senate to act any differently if the president was a Democrat. There is going to be a backlog in a presidential election year. Always.
You have repeatedly taken issue with so called liberal judges' decisions that remove controversies from the political decision making process. While at times such decisions are inappropriate, generally you are wrong for holding this sentiment.
The Constitution has set boundaries. Within these boundaries, there is a very, very wide area where the majority can impose its will upon the country. However, the Constitution disallows the majority from stepping over these boundaries and imposing its will upon the minority. It is the Art. III courts' job to police this boundary for the protection of the minority.
You repeatedly state that so called conservative judges are better because their decisions are reversible by the majority. But you miss the point. Most instances of judicial decisions that constitutionalize the law are spurred by a need to protect those who can not garner a majority; that is, the so called liberal judges merely fulfilling their Art. III duty.
The great thing about our government is that it combines two enviable traits: (1) the majority rules, but (2) not at the expense of the minority's basic liberty. The difference between my position and yours is that I would have the courts give meaning to the word "liberty" and a minimal degree of protection to the minority; all other laws are fair. Conversely, you would infuse the majority with unlimited authority by pretending that the word "liberty" -- found in the 14th Amendment -- doesn't exist.
It is not a "purely ... theoretical problem." Griswold is a relatively recent case, published in 1965! Several parental, moral watchdog laws similar to that struck down in Griswold have only recently fallen. For instance, before 2003 it was constitutional to criminally punish an individual for engaging in sodomy. Cohabitations serves as another example -- it was illegal in North Dakota as recently as 2007!
In other words, we shouldn't pretend that laws similar to anti-contraceptive laws are beyond the pale. They're not.
Wasn't Alex Kozinski's confirmation the closest in history? He almost didn't make it through, IIRC.
Um... where in Art. III does it say that judges are required to institute minority rule? Last time I checked, there are these boundaries, beyond which government cannot cross, and, outside of those, majority wins. Now, if you would like to point to the Protect Minorities Clause, I'll be happy to read it and give you an opinion.
I almost addressed this very issue in my original post, but unfortunately I failed to do so. You make a very good point, but it ultimately fails.
The beginning point of our analysis is McCulloch v. Maryland: "we must never forget, that it is a constitution we are expounding[.]" You surely remember this famous quote, intended to convey the important point that it is absolutely impossible to spell out every single mandate made by the Constitution. Your position, however, requires just that.
In fact, the strict constructionist position that you propound flies in the face of everyday experience and common sense. A simple example will do nicely. Suppose my friend Obama asks what your name is, to which I respond "theobromophile." If my friend Obama is later asked whether theobromophile is a human being, would Obama have grounds to say "I have never been told; I don't know." No, he would not. I never told Obama that you are a human, but it clearly follows.
The same principle of logic requires the conclusion that federal courts act as a countermajoritarian body; that is, this principle isn't directly stated in the Constitution, but it clearly follows. The courts are given the authority to apply the law. The courts thus must know what the law means. The courts thus must be able to interpret the law. The courts' judges pledge an allegiance to the Constitution. The Constitution was the original, founding document. We are a government of laws and not people. Thus, the law must control, and the Constitution is the supreme law. Because the courts must apply the law and have the ability to interpret the law, they must do so with the Constitution. Because the Constitution is supreme, it must control, and courts must alway ensure that the laws applied adhere to the Constitution, even if it means overruling the majority. Thus, the courts have a countermajoritarian role. Marbury v. Madison.
Of course, this argument alone isn't dispositive. But combined with other aspects of teh Constitution's structure, it becomes silly to
Of course, this argument alone isn't dispositive. But combined with other aspects of the Constitution's structure, it becomes silly to argue that the federal courts aren't countermajoritarian by their very nature.
For instance, the Framers created three branches. Two of these branches are political -- that is, they are controlled by the majority. However, the Art. III branch is not political -- that is, it is not controlled by the majority. This was done intentionally. The Framers wanted to prevent federal jurists from the majority's control, making them free to uphold the Constitution even if it means that an issue must be removed from the majority's control. Federal judges are given life time tenure, in part, for this very reason.
Conclusion. You took issue w/ my statement that federal judges protect the minority. All that I intended to convey is that the federal judges' authority to act w/o regard to the majority is designed to ensure that the majority adheres to the Constitution -- in other words, that the majority can not violate the minority's constitutional rights. The Constitution's structure makes this quite clear.
You have 2 GOP justices in the majority, not even counting Stevens, who was appointed by Ford.
But fine, substitute State Farm v. Campbell or Phillip Morris v. Williams , both progeny of BMW v. Gore. The point remains the same. Conservatives are all too willing to write things into the constitution when it suits them. Or are you only counting Scalia and Thomas as conservatives?
Note the irony that Ginsburg was in dissent every time.
Even moreso, I expect the 42 (minimum) GOP Senators to hold up some of Obama's nominees by filibuster.
1. Ruth Bader Ginsburg is **center-left**??
Absurd.
2. "You have 2 GOP justices in the majority, not even counting Stevens, who was appointed by Ford."
Being appointed by a GOP President does *NOT* imply the judge is in fact *conservative*. Sandra Day O'Connor is a prime example. Grutter anybody?
This should be self-evident.
Your terse rebuke of Ginsburg--"[a]bsurd"--is difficult to counter because of its lack of detail, but I can nonetheless prove that you are wrong.
The point being made by the commenters when they referred to Ginsburg as "center-left" is that she WAS considered center-left when appointed. For instance, her voting record in DC was touted as decidedly moderate. Furthermore, she was quite centrist on the abortion issue, volleying sharp critiques on the Roe opinion but arguing for the several states' right to decide the abortion issue.
I won't condemn them for the filibuster, just the hypocrisy.
You're right that being appointed by a Republican doesn't guarantee you're a conservative, but SDO happens to be one. Admittedly a moderate one, which I realize makes her a Marxist to the extreme right (just like the extreme left doesn't think Breyer is a liberal), but a conservative nonetheless.