Over the last ten years, the process for selection of federal judges has become highly politicized and ideologically charged. While the overwhelming majority of nominees are confirmed by the Senate, the process creates bad will and breeds charges of bad faith and political manipulation. The Leadership Conference believes that all who are committed to social justice and equal rights must demand that those appointed to the federal courts have distinguished records as lawyers, are well respected by their peers, have integrity and a commitment to the Constitution, including assuring equal rights and equal opportunities for all.
The only way out of this quagmire around judicial nominations is for the President and Senate leaders to agree on a fair-minded and neutral process that would identify the most qualified jurists for appointment to the federal courts. In addition, because the Constitution makes clear that the selection of federal judges should be done with the cooperation of both the U.S. president and the Senate, we recommend a process that involves both branches of government and that stresses the need for bipartisanship.
Federal judges are not judges for one party or one ideological group. They are the guardians of our Constitution and the protectors of our system of government. The public must be assured that our federal judiciary is made up of the best candidates, not those who are the closest political or ideological allies of the party in power. This is particularly important given how closely divided the country is along political lines.
The current battle over judicial nominations is not another example of the partisan warfare gripping national politics or Democratic retribution for Clinton nominees denied hearings, votes, and judgeships. While Congress remains sharply divided and partisanship has never been higher, neither explains what lies at the heart of the current debate.
Embodied in the Constitution is the principle of judicial independence—a third branch, free from political winds and popular beliefs that blindly dispenses justice. The President and the Senate, co-equal partners in the judicial appointment process, contribute to the independence of the judiciary by ensuring that neither creates a federal bench in its own image. Today, however, the covenant between the White House and the Senate has been broken, the confirmation process is suffering, and the rule of law is at stake.
Cloaked in a distorted version of federalism, many of the men and women President Bush has nominated to the federal courts have been at the forefront of efforts to diminish congressional power in stark contrast to the clear dictates of our Constitution. While the President has the authority to forward such nominees to the Senate, he is also required—by the Constitution—to have a conversation with the Senate about his choices. Exercising raw political power to confirm his nominees does not comport with what the Constitution demands. It requires a vigorous response by those equally responsible for the appointment of federal judges—Democratic and Republican Senators alike.
The resolution of this crisis has broad implications for the country. Appellate court judges are often affected by the thoughts, philosophy, and experiences of their peers. As President Bush pursues the confirmation of radical conservatives to the bench, he hardens a more extreme brand of conservative thought and outcome by ensuring less diversity on the bench.
Beyond the statistics and political battles, something of far greater importance is at stake—the integrity of the confirmation process, the independence of the judiciary, and the courts as a hopeful refuge for justice, equality, and fairness. These are not lofty ideals divorced from the everyday lives of American families. The federal courts—and the men and women who serve there—affect us all. Every person subject to the courts' decisions deserves a cooperative confirmation process that ensures a vibrant and responsible judiciary.
