An Apolitical Judiciary System?

The modern judicial process over the course of time has become a sham. While it is a very simple and straightforward process, there are many instances where interjections by Congress, more specifically filibusters, have obstructed nominees from being appointed and have perpetuated the myth that the Court should be an inherently objective institution.

The process itself really has eight different steps:

1.) When there is an open judicial position, the president nominates someone to the position. Usually he discusses the nomination with key senators before announcing his choice

2.) The nomination is sent to the Senate Judiciary Committee

3.)The Judiciary Committee collects information about the nominee, including a background check by the FBI, and reviews the nominee's record and qualifications.

4.) The Judiciary Committee holds a hearing on the nominee. Witnesses speak both in favor and against the nomination. Senators ask questions of the nominee.

5.)The Judiciary Committee votes on the nomination, and then makes a recommendation to the full Senate, that the nominee either be confirmed, rejected, or that they do not have a recommendation. Sometimes they decline to send a nominee to the Senate at all.

6.)The full Senate debates the nomination

7.)A vote of 3/5 of the Senate (60 senators) is required to end debate. This is called a cloture vote. If enough senators wish to delay a vote on a nominee, they can filibuster by not voting to end debate.

8.)When debate ends, the Senate votes on the nomination. Confirmation requires a simple majority of the senators present and voting

http://judiciary.senate.gov/nominations/judicial.cfm

It is during these 6^th and 7^th steps that the true issues with the judicial nominating process become evident, especially under the most current presidential administration. There have been “fewer nominees have been confirmed during the Obama administration than at any time since President Richard Nixon was in office.” This has an overbearing implication for the everyday citizens of the United States. In February 2011, for every eight federal judicial seats available, one was a vacant seat. This results in fewer judges to hear cases and more overworked judges. A primary example is the 9^th Circuit Court in California. Three vacant seats on the court have prompted the federal judiciary to label it a “judicial emergency" for the amount of appellate cases with which they work.

Personally, I believe this is abhorrent. For a nation that prides itself on fundamental principles of liberty, justice, and due process by law, the obstruction by Congress upon the confirmation of federal judges undermines the entire legitimacy of the judicial process. It is blatantly obvious that the reason for leaving these judges in a “political limbo” is precisely that reason, political. It is a result of the increased politicization of Congress and the increasing polarization of political parties and lobbyists.

The most early and probably most well known example of politics in judicial nominations begins with Robert Bork in 1987. Starting in the 1970s, Congress began to become more polarized on both sides of the aisle. Reagan’s appointment of Bork, many thought, would shift the ideology of the Court to the right, not to mention Bork had, as Sen. Ted Kennedy speech so eloquently stated, very extremist views. The same political factors were true of the appointment of David Souter by President George H.W. Bush. Bush believed that Souter’s views were more conservative than they actually were, resulting in contempt by Bush’s conservative followers. Throughout history, and we can see that just with these two examples, the apolitical nature of the most Supreme Court in the land is a myth, and it’s about time that the president take his role as the highest executor in the land and dispel it.

What implications would this have for the nomination process itself? It would almost certainly result in the group that has the majority in the Senate confirming or reject the nominee. No Republican would be willing to confirm a non-Republican and vice versa. However, the implications for the Court itself would be great. More politicized views on the Supreme Court would lead to stronger debates between the jurists and thus more democratic outcomes. There are still downfalls to this particular scenario. As seen in Bush v. Gore in 2000, those judges who align with a particular party would almost always vote in favor of a policy or outcome that supports their respective party. Thus, the outcome of every decision would be decided by the number of jurists on the Court that resonate that parties viewpoint, not to mention it would cause a political rift in the Court.

All in all, the problem is not the quality of judges that are being selected. Each appointment that has been made has been approved by the ABA as a candidate of well-qualified status, but one must take into consideration that the ABA is an interest group. The problem that is inherent to the nomination of the federal judiciary is the politicization and polarization of Congress and political parties and its influence on the institution itself.

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