Our Broken Judicial Confirmation Process and the Need for Filibuster Reform
2003; Wiley; Volume: 27; Issue: 1 Linguagem: Inglês
ISSN
0193-4872
Autores Tópico(s)Legal Systems and Judicial Processes
ResumoTo vote without debating perilous, but to debate and never vote imbecile. --Senator Henry Cabot Lodge (1) Filibustering originally referred to mercenary warfare intended to destabilize a government. --Catherine Fisk & Erwin Chemerinsky (2) The Senate of United States only legislative body in world which cannot act when its majority ready for action. A little group of willful men, representing no opinion but their own, have rendered great Government of United States helpless and contemptible. The remedy? There but one remedy. The only remedy that rules of Senate shall be so altered that it can act. --President Woodrow Wilson (3) Now perfect moment ... to get rid of an archaic rule that frustrates democracy and serves no useful purpose. --The New York Times (4) INTRODUCTION On May 9, 2001, President George W. Bush nominated distinguished Washington attorney Miguel Estrada, Justice Priscilla Owen of Texas Supreme Court, and nine other talented jurists to serve on prestigious federal courts of appeals. (5) Senator Patrick Leahy, then and now ranking Democrat on Senate Judiciary Committee, attended President's East Room ceremony announcing these nominees, and said afterward: Had I not been encouraged, I would not have been here today.... I know them well enough that I would assume they'll go through all right. (6) Senator Leahy announced that [w]e will submit [the nominees] to [American Bar Association], so there could be peer review, (7) and ABA responded by giving both Estrada and Owen its highest possible rating: unanimous well-qualified. (8) Yet today, well over two years later, Estrada and Owen have not--to use Senator Leahy's words--go[ne] through all right. (9) Quite contrary: Although both Estrada and Owen enjoy support of an enthusiastic bipartisan majority of Senators who have long been ready to schedule a vote to confirm them, to date neither has received an up-or-down vote on floor of United States Senate. Instead, a partisan minority of Senators has launched unprecedented filibusters to block their confirmation by preventing Senate from even calling an up-or-down vote on their nominations. Those same tactics are now being used against Alabama Attorney General Bill Pryor, Mississippi federal judge Charles Pickering, California Supreme Court Justice Janice Rogers Brown, and California Superior Court Judge Carolyn Kuhl, and it feared that others will meet same fate when their nominations arrive on Senate floor. (10) An historic and tragic step was taken when Estrada declared that enough enough and asked President Bush to withdraw his nomination--the first judicial nominee in history of our nation to be denied confirmation despite enjoying support of a majority of Senate. (11) The judicial confirmation process badly broken. I am certainly not alone in that view. Earlier this year, all ten freshman Senators declared, in a letter to Senate leadership, that the judicial confirmation process broken and needs to be fixed, and that the United States Senate needs a fresh start. (12) And veteran senators from both parties have expressed similar sentiments. Senator Chuck Schumer of New York has written, for example, that the judicial nomination and confirmation process [i]s broken and ... we have a duty to repair it. (13) Senator Dianne Feinstein of California has likewise concluded that judicial selection process is going in wrong direction. The debate between Senate and Executive Branch over judicial candidates has become polarized and increasingly bitter. (14) Outside observers of Senate judicial confirmation crisis have come to same conclusion. ABA President Alfred P. Carlton Jr. has concluded that, as result of Senate's broken confirmation process, [t]here a crisis in our federal judiciary, constituting a clear and present danger to uniquely American foundation of our tripartite democracy--an independent judiciary. …
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