Reprint permission from the September 2, 2002 issue of Crain's Chicago Business.
The U.S. Circuit Courts of Appeals are sputtering along with an unacceptably high 15% vacancy rate. Yet, the Senate has confirmed only 13 of the president's 32 nominees to those courts.
The shameful example of Texas Supreme Court Justice Priscilla Owen is illuminating. Justice Owen was nominated to the Court of Appeals for the Fifth Circuit on May 9, 2001, and 440 days later, the Judiciary Committee granted her a hearing. Those who attended the Democratic senators' interrogation about her personal beliefs witnessed a veritable inquisition.
Their grandstanding probed her conscience about parental notification, employment discrimination and social justice. And they assailed her as an extreme right-wing judicial activist.
But Justice Owen's personal views are of little consequence. Lower-court judges aren't in the business of second-guessing the U.S. Supreme Court. All they need to do is defer to Congress and apply Supreme Court precedents. Almost always, the cases they hear lead inexorably to one right result, and party politics makes no difference at all.
So, Justice Owen's view of the world ought not influence anybody's opinion about whether she has the competence and character to be an Appellate Court judge. And, by any rational reckoning, she does.
But a cadre of special interest groups is out to demonize Justice Owen.
Proponents of a liberal political agenda galvanized public opinion when Robert Bork's and Clarence Thomas' divisive nominations to the Supreme Court were front-page news. And, to stay alive until another Supreme Court appointment polarizes the electorate, special interest groups don't much care if they create an unjustified impression that lower-court judges examine policy issues just as vigorously as the Supreme Court does.
There's nothing new about brutalizing nominees to an Appellate Court. Nor is the legalization of the culture wars confined to the Democrats.
When the Republicans took control of the Senate in 1995, then-Majority Leader Trent Lott and his cohorts on the right wing of his party successfully stonewalled President Bill Clinton's federal Appeals Court nominations.
Last month, the American Bar Assn.'s governing body unanimously voted to urge the president and the Senate to move promptly to name and confirm candidates for the federal judiciary.
The vote came after a meatier, but more controversial, proposal admonishing the Senate to act on all nominations within six months, was unceremoniously withdrawn.
The Senate's leaders and the president need to strike a bargain. Democrats should agree to vote on the president's nominees they find acceptably moderate, while the president should abandon his most contentious nominees and replace them with others the Democrats can accept, including some whose names were advanced by President Clinton, but who were never permitted a hearing.
Before the federal Appeals courts are paralyzed, let's demand that the most ideological Republicans and Democrats be statesmen first and move toward the compromise that will avert a meltdown of our federal judicial system.
Marc J. Lane is a Chicago lawyer and financial planner and an adjunct professor of law at Northwestern University School of Law. He can be reached at firstname.lastname@example.org.
Copyright © 2002 by Crain Communications Inc.