Thoughts of an American Centrist

Wednesday, May 11, 2005

The American Centrist's Brainstorm for a redesigned judicial nomination process

Given the general angst caused by the situation wherein during the past decade it has become harder to be confirmed to the federal bench than to the Jedi Council, and inspired by a great post and comment forum on the Volokh Conspiracy, I thought I'd do a little brainstorming and come up with a completely new system of appointing federal judges that still falls within the Constitution.

Here's a novel concept: how about voting on batches of nominees instead of one at a time, much the same way a parliament will approve a new executive government.

If there could be a semiannual round up of all appellate and lower court openings, the congress and the president could pool their recommendations and come up with a freshman judicial class whose ideological make up better represents that of the general public.

Here's my idea of how it would work:

  1. The president submits all nominees
  2. The majority party gets to pick some of them out of that pool (55% under the current Senate breakdown)
  3. The minority gets to pick the rest.
There could even be a system where the leadership of each party submits names to the President to include in his nominations.

Here is a short example. Say we have 15 openings in the court of appeals, and 50 more in the lower courts. Under the current government (GOP president; 55 Republicans & 44 Democrats in the Senate):
  1. the Senate GOP would submit 4 names for the court of appeals, and 15 for the lower court.
  2. The Senate Democrats would submit 4 names for the court of appeals, and 12 for the lower court.
  3. The President would make all nominations, but would include the requests of both parties as a matter of courtesy.
  4. The GOP picks 8 appellate court nominees, and 27 lower court nominees
  5. The Democrats pick 7 appellate court nominees, and 23 lower court nominees
If either party decides that they cannot fill their selections with an acceptable number of candidates, they request new nominees for the open spots, and the president submits new names.

Now, this is a pretty complex scheme, but I believe it could do a lot of good. This way, we would maintain a system where, regardless of President, liberal, conservative, and moderate judges all get on the bench. Obviously, the party of the president will get more nominees they like under this system, but that, I believe, reflects the original intent of the constitution giving the President broad discretion. Also note that the nominees that each party submits would have to be ideologues, but that many of the presidential submissions would have to be more moderate to keep the minority party from black-balling them.

Disclaimer: I literally thought of this under an hour ago, and was kind of making it up as I go along, so if there is something glaringly wrong about it, please let me know in a way which does not employ phrases like "you're an idiot" and such. Still, I believe it's a good concept. Also, I am well aware that this system will almost certainly never be implemented. However, I would like to have it ready just in case. After all, you never know when you're going to need a fully formed judicial nominating process, do you? I, for one, want to be prepared for that. Thank you.

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