Overruled


David Broder Infects the Christian Science Monitor
February 19, 2009, 4:05 pm
Filed under: Ian | Tags: ,

More Broderism on judicial selection:

As both liberals and conservatives seek to change society through the courts, the selection of judges has become politicized, eroding their mandate for impartiality. Both sides want to rip off the blindfold on the statue of Lady Justice and tip the judicial scales in their favor. “The level of anger directed toward judges today exceeds that of the past,” wrote former justice Sandra Day O’Connor recently.

One way to lessen that anger is to allow a bipartisan panel of citizens to have a say in picking nominees. By tradition, a president’s nominee for a court in a particular state can often be blocked by either senator from that state. To get around that and to select impartial judges, senators in eight states have used panels of citizens to propose or screen nominees. The process isn’t always perfect, especially if the panels are stacked with trial lawyers.

You know, if you’re trying to pretend like you are some kind of neutral bipartisan, you might not want to take a gratuitous swipe at “trial lawyers” unless you are also willing to admit that it would be bad if judicial selection panels were dominated by the Chamber of Commerce.

But even setting aside the editorial writer’s failure to veil their own conservative bias, the proposal for a “bipartian panel of citizens” responsible for picking judges is hardly a novel one.  Indeed, it’s already been done:

Shortly after taking office in 1977, President Carter initiated reform of the selection process. He argued that judges should be selected based on merit and that the patronage system perpetuated by senatorial courtesy thwarted that goal. (No doubt, he also wanted to bypass the potential veto power of conservative Southern Democrats over his own nominees.) Through executive order, Carter created a Circuit Court Nominating Commission to develop a short list of potential nominees based on merit. The final choice would come from that list. Through a separate executive order, he urged home-state senators to create their own nominating commissions to advise them on district court nominees. By 1979, senators from 31 states had complied with the request. These two executive orders significantly undermined the old patronage system of choosing federal judges. Home-state senators still retained the ability to exercise their veto through the blue slip procedure, but Carter’s reforms had effectively taken away their initial choice of a nominee.

So what happened to these great and wonderful merit selection panels?  Well, in 1980 we elected a new President named “Ronald Reagan,” and Ronald Reagan decided he didn’t want to choose judges based on merit.  He wanted to choose judges based on ideology.  And he did.  So did his successor.  So did George W. Bush.

Merit selection panels are not a terrible idea—in theory—but the truth is that if Democratic Presidents rely on non-ideological panels to choose their judges, and Republicans behave like they have always behaved in the past, then the courts will lurch inexorably to the right.  Should President Obama create Carteresque merit selection panels to choose his judges, is there anyone who thinks that a President Jindal or a President Palin or a President Romney would follow his lead?

I might be willing to support a constitutional amendment requiring that judges be selected using the Carter method, provided that the amendment was drafted rigidly enough to prevent future presidents from ignoring its intent and finding a way to pick judges based solely on ideology.  But the idea that President Obama should unilaterally disarm is absurd.

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[…] Home-state senators still retained the ability to exercise their veto through the blue slip procedure, but Carter’s reforms had effectively taken away their initial choice of a nominee. So what happened to these great and wonderful …Continue Reading […]

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