Use Lame-Duck Week to Appoint Judges to the Federal Bench

Posted December 9, 2008 at 3:14pm

Last month’s federal elections have left unclear exactly what the 110th Congress can accomplish in this week’s lame-duck session. The continuing gamesmanship and jockeying for political advantage, as the Democrats wait to assume their expanded Senate and House majorities in the 111th Congress and White House control and the American economy’s dismal state, indicate that Congress will focus principally on economic concerns. Nevertheless, if Democrats work carefully together with Republicans on several matters that are important to the federal judiciary, lawmakers could realize immediate and long-term advantages for the parties, the courts and the nation.

The appointment of judges is one clear area in which both parties may cooperate and secure progress. The federal bench now experiences 42 appellate and district court vacancies for which President George W. Bush has submitted 26 nominees. Democrats, who possess a Senate majority, should determine which candidates they deem most acceptable because the nominees are intelligent, independent, ethical and industrious, possess centrist political views and have balanced judicial temperament.

The Democrats should cooperate with Republicans by expeditiously conducting floor votes on nominees whom the Judiciary Committee approves and promptly considering candidates who have yet to receive panel votes. Helpful illustrations are District Judge Paul Diamond, whom Bush nominated for the 3rd U.S. Circuit Court of Appeals, and Gregory Goldberg, who received nomination to the U.S. District Court for the District of Colorado.

A second positive action would be the enactment of comprehensive judgeship legislation. Congress last passed a thorough statute in 1990, when George H. W. Bush was president. The Judicial Conference, the federal courts’ policymaking arm, has suggested that Congress authorize more than 60 new appeals and district judgeships, recommendations that it bases on conservative estimates of dockets and judicial resources. Approving nominees for the present vacancies and authorizing and confirming judges for new seats would permit the bench to resolve cases quickly, economically and fairly.

A third significant concept would be passage of legislation that increases the salaries paid to federal judges. Prolonged Congressional inaction on judicial compensation has undermined numerous jurists’ standard of living, led some judges to assume senior status, retire or resign early and discouraged many excellent candidates from contemplating judicial careers. Chief Justice John Roberts has enunciated a number of strong arguments for raising judges’ pay. Adoption of a judicial salary measure could encourage experienced judges to remain members of the judiciary and lead additional highly qualified candidates to consider becoming judges.

United States voters clearly voiced support for change in the recent federal elections. Lawmakers should be responsive to this call for reform. One helpful place to begin would be the federal courts in the lame-duck session. If both parties cooperate on matters critical to the judiciary, elected officials can start restoring public confidence in Congress and earn the trust that the public bestowed on Nov. 4.

Carl Tobias is the Williams professor at the University of Richmond School of Law.