Thursday, October 18, 2012
The Presidential Election and the Lower Federal Courts
Over at the Volokh Conspiracy, Ilya Somin wonders why no one is asking the Presidential candidates about judicial nominations during the debates. I sympathize with the concern but find it a bit misplaced: in any of the typical debate formats, the responses will inevitably tend toward vague descriptions of “strict constructionists” or individuals with sufficient “empathy.” This may rally the base but otherwise offers little insight. (The problem isn’t limited to Presidential aspirants: in their second debate, Massachusetts senate candidates Elizabeth Warren and Scott Brown offered two of the least illuminating answers ever when asked to name their model Supreme Court Justice.)
One way to get better answers on the candidate’s view of the relevance and importance of judicial nominations is to focus on the lower courts. The Supreme Court captures public attention, of course, but it is the lower courts where most citizens have contact with the federal judiciary, and where a President can leave a more lasting legacy. To that end, here are two questions I would like to see posed to the candidates before Election Day:
President Obama, you inherited 41 federal district court vacancies on Inauguration Day 2009, yet during the entirety of your first year in office you nominated a mere 21 people to fill those vacancies. (Fuller details here.) Today there are 62 vacancies in the district courts, representing a shortfall of almost 10 percent. Despite this crisis, and even though you enjoyed a significant Democratic majority in the Senate for your first two years in office, your overall pace of lower court nominations has lagged significantly behind your two immediate predecessors. Why?
Governor Romney, during your time as Governor of Massachusetts you established a Judicial Nominating Commission to vet judicial candidates and send the most promising individuals to you for further consideration. The Nominating Commission was heralded as a model for the country, particularly since it relied on a blind review that did not consider the candidate's party affiliation. Yet some have complained that you stripped the commission of many of its powers toward the end of your term in order to put a more partisan stamp on the judiciary. What lessons did you learn from the Nominating Commission experience, and as President, would you favor the expanded use of senatorial screening committees to help select qualified candidates for nomination to district court judgeships?
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Great questions. Given their recent statements and debate answers, I suspect that President Obama would find a way to avoid answering why he hasn't appointed more judges, and Governor Romney would explain why something that works well at the state level should not be applied at the federal level.
Posted by: Jason Marisam | Oct 18, 2012 11:31:50 AM