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    Wisconsin Lawyer
    March 01, 2012

    President's Message: Remove Politics from Judicial Confirmation Process

    Congress should put the integrity and independence of the federal judiciary before partisan politics and work cooperatively and cordially to fill all federal judicial vacancies.

    James M. Brennan

    James M. Brennan

    When I represented Wisconsin lawyers on the Federal Nominating Commission eight years ago, I worked to vet candidates with a bipartisan body to facilitate the nomination and confirmation of judges and prosecutors to fill Wisconsin federal court vacancies. After selecting candidates on a merit basis, the commission developed a short list that was forwarded to Wisconsin’s U.S. Senators and the White House. The President appointed from the short list and submitted the chosen appointees for Senate confirmation.

    Implicit in the commission’s bipartisan structure was the goal that commission-vetted appointees would get a confirmation hearing. A further hope was that neither Wisconsin senator would exercise his home-state prerogative to block a Senate Judiciary Committee confirmation hearing on the nomination, which is a practice known as “blue-slipping.”

    In recent years, the Federal Nominating Commission has done its work, but nominations have stalled, vacancies persist, cases languish longer, and justice is delayed. Meanwhile, due to the vacancies, more of the Wisconsin federal caseload is carried by judges on senior status and by magistrates.

    All Wisconsin Eastern District Court judges are at or near eligibility to assume senior status; Judge Clevert is expected to assume senior status this year. The Western District Court, which enjoys a national reputation for its expedited civil calendar and is favored by business litigants, is without a confirmed successor to Judge Shabaz. Judge Crabb, already on senior status, is managing this caseload. Frankly, it may be unreasonable to expect much relief for the judicial branch in this election year. Nevertheless, we lawyers, and not just the many lawyers who practice in federal court, are specially charged to speak up for the judicial branch. We have an interest in the integrity of the judicial system and a challenge to defend the judicial branch from politicization.

    Here is what is at stake. The integrity and independence of the federal judiciary are threatened by partisan wrangling and extended delays in filling vacancies. Partisan nomination hearings, combined with long delays, deter many talented Wisconsin lawyers from seeking positions on the bench. After all, what candidate has the fortitude to wait years for a confirmation hearing by a process that has contributed the terms “high-tech lynching” and “borked” to the political lexicon?

    Heated political battles over nominations, such as the nomination of Justice Louis Butler in the Western District, demonstrate a disregard for the vitality of a co-equal branch of government that should be held above the fray. The failure to even convene a nomination commission prevents the President and senators from fulfilling their constitutional responsibilities. The failure to clear appointees for a Senate Judiciary Committee hearing on their merits represents a default in governance.

    Extensive vacancies or protracted delays in the judicial nomination and confirmation process have weakened the federal judiciary by depriving it of the judges needed to resolve disputes expeditiously. Wisconsin residents and businesses are deprived of a robust justice system that can respond to both liberty and commercial interests.

    The State Bar of Wisconsin has consistently called on Congress to put the integrity and independence of the federal judiciary before partisan politics and work cooperatively and cordially to fill all federal judicial vacancies. The State Bar has supported the work of a nominating commission and urges senators of both parties to refrain from blue-slipping confirmation hearings on judicial confirmation. 

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