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Show Filibustering the Filibuster: A Reexamination of the Legislative Role in Establishing A Fair Judiciary Adam Reiser Judicial Partisanship Although the political atmosphere surrounding judicial confirmations evolves constantly, politics have surrounded the judiciary from the dawn of the country. Although many believe partisanship in judicial nominations and confirmations is increasing, there is evidence that today's political influence on the judiciary is no different than it has always been. Lee Epstein and Jeffrey Segal (2005, p. 4) noted, "We do indeed dispute the idea of an escalating reliance on ideology and partisanship on the part of senators and presidents [regarding judicial nominations and confirmations]; we do not believe a wholesale change has occurred in this respect." George Washington, in establishing the first Supreme Court, appointed 14 justices from the Federalist Party during his administration. Former Supreme Court Chief Justice William Rehnquist stated It is normal and desirable for presidents to attempt to pack the judiciary. Surely we would not want it any other way. We want our federal courts, and particularly the Supreme Court, to be independent of public opinion when deciding the particular cases or controversies that come before them. The pro-vision for tenure during good behavior and the prohibition against diminution of compensation have proved more than adequate to secure that sort of independence. The result is that judges are responsible to no electorate or constituency. But the manifold provisions of the Constitution with which judges must deal are by no means crystal clear in their import, and reasonable minds may differ as to which interpretation is proper. When a vacancy occurs on the Court, it is entirely appropriate that the vacancy be filled by the President, responsible to a national constituency, advised by the Senate (Rehnquist, 1987, p. 236). Washington's practice of appointing judges from one's own party has continued to this day. All but 17 of the 147 candidates for a position on the U.S. Supreme Court belonged to the same party as the President that nominated them. No president has made a cross-party Supreme Court appointment since 1971, when Richard Nixon appointed Virginia Democrat Lewis Powell as an electoral appeal to southern voters. Partisan appointments have traditionally occurred in lower court appointments as well. When the federal judiciary was expanded in the 19th century, presidents continued a strong trend in filling these seats with judges who shared their party and ideology. Grover Cleveland, Woodrow Wilson, and Ronald Reagan virtually never nominated a judge not from their party; even Democrat Jimmy Carter, known more than any president of his time for reaching across party lines, only nominated Republican judges 16% of the time. Cumulatively speaking, the 135 year period of the expanded federal judiciary (1870-2005) has seen 3,082 appointments, 92.5% of whom have been from the appointing president's political party (Epstein and Segal 2005, p. 26). While an impartial judiciary ought to be a goal of all three branches of government, those in power to influence this process learned very quickly that selecting members for the judiciary required more than evaluating law school grades, American Bar Association ratings, or peer recommendations. Executives and legislatures understood that each judicial nominee would carry a distinct flavor of partisanship that would need to be considered when being approved for the fed' eral bench. Epstein and Segal commented on this unwritten policy: Practice and time also have settled the issue of the role of politics in judicial appointments. However loud the critics may be, the simple reality is that both the Senate and the President take into account nominees' partisanship and ideology, in addition to their professional qualifications, when they make their decisions, and they always have. The evidence is too overwhelming to ignore (Epstein and Segal, 2005, p. 26). Even members of the judiciary themselves recognize the poli' tics affecting their appointments and often try to keep their hands in the political game even as they retire. Justices ana judges have a history of seeking to influence their replace-ment, often strategically planning when to retire in order to ensure a replacement most ideologically to their liking-Epstein and Segal (2005, p. 39) offer the following examples, (quoted directly): • Potter Stewart (1958-1981) According to the Republican Stewart, while he became eligible for retirement in 1980, he did not want the vacancy created by his retirement to become an election issue. So he delayed his retirement until 1981, which perhaps not so coincidentally, was the year Ronald Reagan replaced Jimmy Carter. • Warren Burger (1969-1986) The Wall Street Journal reported that the conservative Republican Burger was "concerned about the coming Senate elections and the possibility that Republicans could lose their majority. A Democratic controlled Senate would be far less amenable to confirming conservative Reagan-appointed justices." Indeed, the Republican Senate in 1986 overwhelmingly confirmed Rehnquist to replace Burger and unanimously confirmed conservative Antonin Scalia to replace Rehnquist. But just one year later a Democratic Senate rejected conservative Robert Bork. • Thurgood Marshall (1967-1991) Growing increasingly ill, the liberal Marshall reportedly told his clerks that should he die during the Reagan years, they should "prop him up and keep on voting." Too sick to wait for the election of a democratic president, however, Marshall retired while George H.W Bush was in office. • Harry Blackum (1970-1994) Though appointed by Nixon, Blackum moved increasingly to the left during his years on the Court. Wanting to ensure that his replacement would also be a liberal, he waited until a Democrat won the presidency. • Sandra Day O'Connor (1981-2005) The press reported that O'Connor was disappointed when she thought Al Gore won the presidential election of 2000. She remained on the Court to see George W. Bush win a second term and has now retired with Republicans in control of the Senate as well. 62 1 |