The Other Justice Problem
After a couple of weeks of Current Events posts, it looks like tonight is the third and final installment of the What's Wrong With America trilogy: The Federal Judiciary. Unlike the media and the electoral system, which are mechanisms for exposing and voting out corrupt or incompetent politicians, the Judiciary is intended to limit their damage to the bounds of the law and the Constitution. But as we have learned from the US Attorney firings, the Republicans view the law as just another convenient tool to be co-opted in their pursuit of eternal, absolute political power. So instead of restricting the damage that the Republicans can do, a Republican-controlled Judiciary legitimizes and cements it.
Another lesson of the Attorney Purge is the importance, and limitations, of the confirmation process. On the one hand, thanks to a Republican Senate majority and a filibuster-shy minority, the Bush administration was able to fill a slate of 93 US Attorneys who targeted Democrats in 298 out of their 375 investigations of elected officials. On the other hand, BushCo. still ended up stuck with a few arrows too straight to pursue phony voter fraud cases or ignore blatant Republican criminality, forcing them to surreptitiously amend the rules to allow the replacement of those "nonperformers" with more willing tools.
Which brings us to the Judiciary, where even with that Republican majority and timid minority, the Bushies have been unable to confirm all of the right-wing ideologues they've nominated, yet still managed to push through a passel of awful hard-right judges like Priscilla Owen, Janice Rogers Brown, and the ethically-challenged Samuel Alito… with a little help from the "Gang Of Fourteen" and the until-recently-ever-present threat of the Nuclear Option.
And this is what bothers me. Federal judges are appointed for life. Why? So they will be independent of politics. Yet between the absurd belief (held only by Democrats but frequently endorsed by Republicans) that the president is entitled to extreme deference on his judicial nominees, and the requirement of a simple majority to confirm, it's really not that difficult for a President to stack the courts with like-minded political extremists, provided his party controls the Senate, and the opposition believes that keeping its powder dry is an end unto itself. (Dry powder apparently brims with even more untapped potential than stem cells.)
Sure, in theory it's possible that once removed from all political considerations, a judge may strive to be right rather than right-wing, but I don't believe this kind of ideological transformation happens very often. Furthermore, I would suggest that there are really only nine federal judges in the entire country who are truly insulated from any kind of political considerations. After all, any judge who rules against his or her political soulmates too often can pretty much forget about ever being nominated to a higher court. On the other hand, if they're too loyal, they may have a hard time getting confirmed. Maybe.
The upshot of all this is that the judiciary is becoming a second legislature, where cases are at least as likely to be predetermined by the political orientation of the court's members as they are by objective interpretation of the law. And, unlike Congress, there is really no way to hold judges accountable for not fulfilling their Constitutional responsibilities.
If When Congress confirms a bad judge, the country's stuck with him or her for the next thirty or forty years.
So, how to fix it? I think the options are pretty straighforward, but there's not much of a role for the netroots other than urging the Senate to change the system. And, of course, ensuring that Republicans never get the opportunity to nominate judges ever again…
1) First and foremost, we must eliminate the notion that presidential judicial nominees are entitled to the benefit of the doubt. This is ridiculous and dangerous when dealing with lifetime appointments. This is obviously more of a cultural shift, and there is no way to legally enforce it. The blogs and netroots may be able to help propel this idea into the cultural mainstream.
2) Require a supermajority (at least 60, preferably two-thirds) to approve all judicial nominees. This will make it impossible to push unsuitable judges through on a straight party-line vote, and should force presidents to pick moderate, highly qualified nominees who can win bipartisan approval. If this rule had been in place 15 months ago, Alito would never have made it to the Supreme Court. I have no idea what it would take to change the voting rules, or if that's even possible. But if the Democrats take the White House and consolidate the Senate, the Republicans might just be willing to find a way to get this done. My only question is whether the Republicans would even be satisfied with excellent moderates, or if they would start insisting that Democratic presidents nominate conservative judges if they want confirmations…
3) Establish nominee standards. Of the 93 judges that Bush nominated in the 109th Congress, 13 were rated "Not Qualified" by at least some members of the ABA Standing Committee, including one who was unanimously rated Not Qualified, and… Harriet Miers. Unless there's a serious shortage of judges, I don't think there's much justification for nominating anyone whose qualifications are even slightly in doubt.
4) I'm not entirely sold on this one, but there could be some value in putting the "advise" back in "advise and consent." Let the opposition party make suggestions as to nominees that would be acceptable to them. If there's a lot of partisan mistrust between the two parties as there is now, this approach could all too easily turn into a nasty game of trying to trick the president into nominating a trojan horse, which is why I have my doubts.
Of course, none of this does anything about all the wingnut judges that we're stuck with for the next 30 years…
Your thoughts? Anyone have any other ideas on how to fix the judiciary?