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Ruling on judges

August 24, 2008

It sounds like a common-sense idea: Establish bipartisan panels of lawyers and community leaders to screen potential federal judges. Yet a proposal to that effect by the American Bar Assn. is being publicly savaged by conservatives and given short shrift by liberal Democrats.

Republican presidential candidate John McCain did not endorse the proposal -- he ignored it -- but conservatives pounced, accusing the ABA of a liberal bias. A Wall Street Journal editorial warned that using such panels to screen nominees "takes the partisan politics out of the public eye and into backrooms stocked with political insiders."

Former Senate Majority Leader Tom Daschle, a spokesman for the Barack Obama campaign, declined to comment on whether the Democratic candidate supported the proposal, though he said Obama, if elected, would "consider a lot of options" to reduce the role of partisanship in the selection of judges. Other Democrats, who've decried the Bush administration's penchant for appointing conservatives to the bench, are looking forward to Obama doing the same in reverse.

The negative reaction is unfortunate because adoption of the ABA proposal would improve the quality of the federal judiciary without infringing on the constitutional prerogatives of the president or the Senate. It even could lead to a truce in the tiresome partisan tit-for-tat in the Senate that has blocked the confirmation of qualified and moderate judicial nominees, a development the next president should welcome, regardless of who he is. The idea of less strife over judges might even appeal to congressional leaders once the election is over.

Lawyers in other countries, where judges are essentially civil servants, marvel at the extent to which the judiciary in the United States is enmeshed in politics, not only at the state level, where judges often campaign for election, but at the federal level. Yet it was a 19th century European, Alexis de Tocqueville, who explained why.

In "Democracy in America," Tocqueville wrote that a visitor to this country "hears the authority of a judge invoked in the political consequences of every day, and he naturally concludes that in the United States judges are important political functionaries; nevertheless, when he examines the nature of the tribunals, they offer at the first glance nothing that is contrary to the usual habits and privileges of those bodies; and the magistrates seem to him to interfere in public affairs only by chance, but by a chance that recurs every day."

In other words, judges in theory apply the law, but in practice they make law on momentous issues from school desegregation to abortion to same-sex marriage. It could hardly be otherwise, given the role of courts in interpreting the Constitution, including what Supreme Court Justice Robert Jackson called "the majestic generalities of the Bill of Rights." Given that fact, liberals and conservatives alike argue, why not drop the pretense of apolitical judges and support or oppose nominees on the basis of their party label or ideology?

There are two compelling answers to that question.

The first is that the vast majority of the work done by federal judges -- particularly trial judges who preside over civil and criminal trials -- doesn't involve hot-button social issues. In most cases, what matters most to lawyers on both sides is the judge's intelligence and sense of fair play, not his or her ideology. Even on appeals courts, where ideology or partisan identification plays a greater role, the process is more complicated and collaborative than many politicians and interest groups imagine.

Second, until the recent trench fighting in the Senate over judicial nominations, partisan imbalances on the federal bench were corrected over time as the White House changed hands. By tradition, home-state senators proposed candidates for federal trial courts to the president, who would then exercise his constitutional prerogative of making nominations. The Senate, in turn, would treat those nominations with deference as long as the candidates were professionally qualified.

An understandable exception to this practice has been the appointment of Supreme Court justices, who as the unreviewable arbiters of the meaning of the Constitution loom much larger in national policy than trial or appellate judges. Even with high court justices, however, deference to the president generally has produced a diversity of views on the bench.

That said, the ABA proposal would not affect the Supreme Court. It calls for senators to impanel diverse and bipartisan commissions to screen candidates for district courts, and for similar panels to be appointed (presumably by senators and the White House) for multi-state appellate courts. Some senators already rely on advisory panels, though the rules differ from state to state. The Judicial Advisory Committee for California comprises appointees both of Democratic Sens. Barbara Boxer and Dianne Feinstein and of the White House.

Boxer was accused of hypocrisy when she opposed President Bush's nomination of one of the names recommended by the California panel, state Superior Court Judge James E. Rogan of Orange County. Her objection was frankly political: As a member of the House, Rogan was one of the managers of the impeachment of President Clinton. But the purpose of screening panels is to identify qualified candidates from which senators and presidents can choose, not to make the appointments themselves.

It's naive to think that politics will play no role in the appointment of federal judges. What matters is that the bench is not filled by cronies or contributors who lack legal qualifications or a judicial temperament. The next president should urge senators in every state to join him in adopting a politically sophisticated variation of the ABA proposal.

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