August 8, 2003

The situation on picking judges is out of hand. We have seen extreme decisions from extremist judges on both sides. We have seen Senate majorities that oppose the President block many nominations. We have seen minorities in the Senate on each side block what they consider to be extremist nominations. The system is not working.

The job of a judge is to moderate. The job is to listen to both sides. The job of a judge is to be impartial. Extremist judges, by definition, or not qualified to serve.

The system we use to nominate judges is flawed in that it favors extremist judges who are not qualified. A slightly liberal President is inclined to pick extremely liberal judges to balance his predecessor who was a slightly conservative President who was inclined for the same reason to pick extremely conservative judges. That does not even consider what happens when you get an extremist President.

We need a new system for nominating judges. While the Constitution dictates a process, we do not need a Constitutional Amendment. The President and the Senate can simply agree to follow the new process. The agreement is not legally binding; but everyone knows that if they break the agreement, everything will revert to the current, broken system. If the President rejects a choice made by this informal process or chooses someone not suggested by the process, it is clear that we go back to filibusters and stacked courts. If the Senate goes against a nomination by the President that was suggested by this process, it knows we go back to Presidents picking the most extreme candidates they can find.

Nominations to the courts should be made by a bipartisan panel. The Senate Majority Leader picks half of the members of the panel. The Minority Leader picks the other half. Recommendations by the panel require a 2/3 vote! There is no way they will agree unless they compromise. They will either pick moderates that everyone likes, or they will trade votes -- you vote for my guy if I vote for yours.

A reasonable alternative suggested by Senator Feinstein (D-CA) would allow the nominating commission to choose more candidates than there are vacancies. This has the advantage of giving flexibility to the President to pick the candidate of his choice, but it has the disadvantage of making it harder for the commission to compromise by picking a mix of conservative and liberal judges. The President will still choose the most extreme candidates of the bunch. While not as bad as picking even more extreme candidates not chosen by the panel, it still inserts bias into an occupation that must never be biased.

It is important that we establish such a bipartisan commission whose decisions would be honored by Presidents of either party and by Senates dominated by either party. This has been used successfully in the past, but it needs to become standard practice rather than a sporadic occurrence.

Senator Leahy (D-VT), Ranking Member of the Judiciary Committee, recently wrote

This Administration continues to resist efforts to increase the use of bipartisan selection commissions, which have been so useful for so many years and worked so well in previous Administrations. Such bipartisan commissions can help us all ensure that nominees are selected based upon professional merit and experience. The recommendations of such commissions have the support of members from their community on both sides of aisle. Accordingly, these bipartisan commissions can help preserve the independence and integrity of the judicial branch of government and ensure the fair and equal administration of justice and enforcement of the law.

Richard M. Mathews

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