Judicial Nominations: Confirmation to Lifetime Appointments Should Not Be Guaranteed

[Update: The New York Times (link) reported that Leslie Southwick’s nomination to the Fifth Circuit Court of Appeals was confirmed by the Senate (59-38).]

The fact that a nominee is selected for a position as a judge does not guarantee confirmation to a judicial post. The Post’s editorial board assumes that if a President nominates someone to a judicial post, Congress should confirm that nominee to a judicial post with lifetime tenure. Thus, I am in direct disagreement with the position of Washington Post’s editorial board.

However, I would agree generally with the Post editorial position with Executive Branch political appointees, because the term of the political appointee ends with the President that selected the appointee.

Judge Leslie Southwick

Judge Southwick holds a position on the Missippippi Court of Appeals. President George Bush nominated Judge Southwick to fill a position as a judge on the federal Fifth Circuit Court of Appeals. He has made some controversial decisions, according to the Post editorial and in an opposing opinion column by Nan Aron. The act of making decisions in controversial areas is central to the job of being a judge. However, not every judge has the temperament to sit on a federal Court of Appeals, where judges have discretion to shape the interpretation of the law.

It seems that Judge Southwick takes a narrow view on interpretation. There are cases, as cited in the Post editorial and Aron’s column, where this type of decisionmaking can cause unjust results. There is reason to conclude that Judge Southwick will continue this approach on the Fifth Circuit.

Regardless of these doubts, the Post editorial states that Judge Southwick should be confirmed.

For that reason [referring to the fact that there is only 1 Black judge on the Fifth Circuit, where the population of Blacks in the Fifth Circuit is between 30-40%], and because of his relatively pinched approach to judging, Judge Southwick wouldn’t have been our first choice for this vacancy. Nor do we like the results in the custody and racial slur cases. But we cannot find fault with Judge Southwick’s narrow but ultimately legitimate interpretation of the law in those cases, and we do not find in his record the anti-gay, anti-worker caricature his opponents have drawn. Sen. Dianne Feinstein (California), the lone Democrat on the Senate Judiciary Committee to vote in favor of his confirmation, got it right when she concluded that if senators were to examine Judge Southwick’s entire career, including his stint as a judge advocate in Iraq, they would find a ‘qualified, circumspect person.’

The Post had similar opinions for the nominations of Chief Justice John Roberts and Associate Justice Samuel Alito.

Nomination of John Roberts

For nominee John Roberts, the Post’s editorial board explained:

[…]While he almost certainly won’t surprise America with generally liberal rulings, he appears almost as unlikely to will- fully use the law to advance his conservative politics.

For this reason, broad opposition by Democrats to Judge Roberts would send the message that there is no conservative capable of winning their support. While every senator must vote his or her conscience on the nomination, the danger of such a message is considerable. In the short term, Mr. Bush could conclude there is nothing to be gained from considering the concerns of the opposition party in choosing his next nominee. In the longer term, Republicans might feel scant cause to back the next high-quality Democratic nominee, as they largely did with Justices Ruth Bader Ginsburg and Stephen Breyer.

If presidents cannot predictably garner confirmation for nominees with unblemished careers in private practice and government service, they will gravitate instead to nominees of lower quality who might excite their bases. Mr. Bush deserves credit for making a nomination that, on the merits, warrants support from across the political spectrum. Having done their duty by asking Judge Roberts tough questions, Democrats should not respond by withholding that support.

Nomination of Samuel Alito

For nominee Samuel Alito, the Post’s editorial board stated:

Humility is called for when predicting how a Supreme Court nominee will vote on key issues, or even what those issues will be, given how people and issues evolve. But it’s fair to guess that Judge Alito will favor a judiciary that exercises restraint and does not substitute its judgment for that of the political branches in areas of their competence. That’s not all bad. The Supreme Court sports a great range of ideological diversity but less disagreement about the scope of proper judicial power. The institutional self-discipline and modesty that both Judge Alito and Chief Justice Roberts profess could do the court good if taken seriously and applied apolitically.

Supreme Court confirmations have never been free of politics, but neither has their history generally been one of party-line votes or of ideology as the determinative factor. To go down that road is to believe that there exists a Democratic law and a Republican law — which is repugnant to the ideal of the rule of law. However one reasonably defines the “mainstream” of contemporary jurisprudence, Judge Alito’s work lies within it. While we harbor some anxiety about the direction he may push the court, we would be more alarmed at the long-term implications of denying him a seat. No president should be denied the prerogative of putting a person as qualified as Judge Alito on the Supreme Court.

The citizenry has seen the results of the confirmation of Chief Justice John Roberts and Associate Justice Samuel Alito (for example, see my posts (under the Supreme Court category on the right sidebar) on the Ledbetter case as well as the Seattle School District case).

Judicial positions are for a lifetime, thus the Senate should conduct exacting scrutiny of each nominee. The Senate should exercise its power to reject nominations (even stalling nominations), if necessary.

The President and Senate, to ensure a smooth judicial nomination process, should agree to acceptable nominees before nominations are submitted for the Senate’s consideration.