Wednesday, January 28, 2009

The Third Branch, To Which Attention Eventually Will Turn
  Government piece by FreeCongressFoundation: Marion Edwyn Harrison

The Inaugural-based furor – or media attention, however one cares to phrase it – in the past couple of weeks preponderantly has been about appointments by President-elect, now President, Barack H. Obama to key Federal Government offices.  This attention, of course, is warranted.  However, it has the secondary affect of deferring attention about the “Third Branch” (as it is called because Article III of the Constitution provides for the Federal Judiciary).

When attention does turn to the Judiciary that attention disproportionately will be speculation about appointments to the Supreme Court of the United States.  However, that Bench has no vacancy.  Upon information and belief, barring an act of God (which, of course, can eliminate or sidetrack any of us, with or without notice), this writer anticipates no imminent Supreme Court vacancy.  The fact that the nine Justices’ ages vary from that of Chief Justice John G. Roberts, Jr., just turning 54, to that of Justice John Paul Stevens, 88, generates a hoard of speculation but isn’t necessarily relevant.  Most of the speculation focuses upon Justices Stevens and Ruth Bader Ginsburg, 75.  Some of it arises due to Justice Stevens’ age, some due to Justice Ginsburg’s having been ill and perhaps feeling at ease if succeeded by an Obama nominee (for reasons somewhat obvious but not inevitably persuasive).

Over 90% of all Federal final appellate decisions are those of the thirteen Courts of Appeals.  Another huge preponderance of decisions effectively is final in the various Federal trial courts – mostly, but not entirely, the United States District Courts, sitting in each of the fifty States and the District of Columbia.  Thus, focus needs to be on those tribunals.

As of January 22, 2009 there were thirteen vacancies on the Courts of Appeals, forty-two on United States District Courts.  When the 110th Congress adjourned ten nominations were pending for the former, sixteen for the latter.  Fifteen such courts have “Judicial Emergencies,” as that category objectively and authoritatively is defined by the (career-employee) Administrative Office of the United States Courts.  Notwithstanding that fact, the liberal and partisan United States Senate during the Bush Administration, particularly during the expired 110th Congress (January 2007 – January 2009), relentlessly and shamelessly denied confirmation.

President Barack H. Obama should nominate, and the recently convened Senate of the 111th Congress clearly should confirm, all those nominees whose confirmation the Senate deliberately delayed.  It delayed solely in anticipation of a more liberal Presidency and greater liberal margin in the new Senate.  Thus, a malicious majority in the 110th Senate sought to reject as many nominees as feasible, when possible by the device of delay.  Each such nominee’s qualifications have been at least highly acceptable, most of them eminently well qualified.

The media, scholars and bar organizations should spotlight the unfortunately likely prospects of “confirmation death” to the nominations pending upon sine die (that is, final) adjournment of the last Congress.  They also should encourage the new Administration not only to renew the nominations of these qualified individuals (or at least of those who would risk accepting re-nomination).  They also should encourage the Obama Administration to nominate for future vacancies qualified individuals who believe the function of a Federal jurist is to apply the facts to existing law, to interpret the law specifically and not expansively, and to leave legislation to the Legislative Branch of the Federal Government.

The Obama Administration’s initial nominees for non-judicial positions and its (somewhat limited and generalized) statements of intent include a potpourri of persons some of whom are, or appear to be, reasonably objective and no more than moderate or moderately liberal.  Who knows to what extent, if any, that mix will apply to judicial nominees?
Marion Edwyn Harrison

Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.  http://www.freecongress.org/

Posted by FreeCongressFoundation: Marion Edwyn Harrison on 1/28/09

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