FORUM

Last year marked the 200th anniversary of the Supreme Court's decision in Marbury v. Madison. Every law student knows Marbury as the 1803 case that established the authority of the federal courts to review the constitutionality of acts of Congress. Yet the pressing issue in the events leading up to the Marbury decision was not judicial review but judicial appointments.

After Thomas Jefferson had defeated incumbent president John Adams in the contentious election of 1800, Adams sought before he left office to staff the federal judiciary with judges loyal to Federalist principles who could be counted upon to limit the success of the incoming Republicans' legislative programs. On January 20, 1801, following the fortuitous resignation of Oliver Ellsworth, Adams named his Secretary of State, John Marshall, as Chief Justice of the Supreme Court and the Senate confirmed the nomination. On February 13, the lame-duck Federalist Congress enacted the Judiciary Act of 1801, which Adams promptly signed into law. It created six circuit courts with sixteen brand new circuit judges. Although Federalists billed the Act as a much-needed reform of the burdensome circuit-riding duties of Supreme Court justices, Republicans rightly saw it as designed to give Adams power to make last minute judicial appointments. (Tellingly, the Act also reduced the size of the Supreme Court by one justice as of the next vacancy, thereby preventing Jefferson from making an appointment.) With the Senate's blessing, Adams promptly staffed the new circuit courts with the so-called "midnight judges."

On February 27, 1801, Congress also passed and Adams signed the Organic Act for the District of Columbia, which created new positions of justices of the peace for the District. On March 3, the day before Jefferson's inauguration, the Senate confirmed twenty-three men Adams selected to fill the posts. Among these new justices of the peace was one William Marbury. That night, just before Adams left the capital, he signed the commissions for the new appointees. John Marshall, still in service as Adams' Secretary of State, affixed to the commissions the Great Seal. For whatever reason, Marbury's commission never reached him. When Jefferson took office, he directed his Acting Secretary of State Levi Lincoln (the post would soon be filled by James Madison) to withhold the commission.

In December 1801, following a series of unfavorable judicial decisions, Republicans in Congress, at Jefferson's urging, moved to repeal the 1801 Judiciary Act, thereby removing from office Adams' new circuit judges and restoring the circuit-riding duties of the Supreme Court justices. Debate over the proposed repeal gripped the nation. Republicans argued that repeal was necessary because the Federalist controlled judiciary was expanding its powers beyond the proper constitutional limits and thwarting popular will. Federalists urged that it was unconstitutional to require Supreme Court justices to ride circuit and that repealing the 1801 Judiciary Act would violate the life-tenure provision of Article III and undermine the independence of the judicial branch. In March 1802 a divided Congress voted to repeal the Act and Jefferson signed the bill into law. With the prospect of the Supreme Court invalidating the Repeal Act's intrusion on the power of the judiciary, Congress cancelled the Court's June term.

The Supreme Court did not meet again until February 1803, just as the House had ominously begun impeachment proceedings against District Judge John Pickering. On the Court's docket was William Marbury's petition for a writ of mandamus compelling Secretary of State James Madison to deliver his commission as justice of the peace. The more closely watched case that term was, however, Stuart v. Laird, which challenged the constitutionality of Congress' repeal of the 1801 Judiciary Act.

On February 23, 1803, the very day Stuart was argued, the Supreme Court issued with little fanfare its decision in Marbury v. Madison. The Court announced its power of judicial review but refused to order Madison to deliver Marbury's commission. On March 2, Justice William Paterson, writing for a unanimous Court in Stuart, upheld the Repeal Act. Skirting the issue of whether the Constitution authorized Congress to abolish the circuit courts, Justice Paterson held that Congress had the authority to transfer a pending case out of the circuit court once it repealed the 1801 Act. Justice Paterson also held that Congress acted legitimately in restoring the traditional circuit-riding duties of the justices. Six days after it avoided a potential showdown with the Secretary of State in Marbury, the Supreme Court in Stuart capitulated to the Republican Congress and Executive and their purge of Adams' circuit court appointees.

As these events suggest, battles over judicial appointments are almost as old as the Republic itself. Indeed, by the standards of the early 1800s, modern disputes over the composition of the judiciary seem relatively tame. Should a Democrat win the 2004 presidential election, Congressional Republicans are unlikely to expand the number of judgeships to allow President Bush a slew of midnight appointments. Nor is there much chance that if Democrats win control of the Congress, they will decide to abolish courts and dismiss recent judicial appointees.

Nonetheless, many observers believe today that the process of appointing and confirming federal judges has spiraled downwards and may be in crisis. The cited evidence includes senators voting on nominations along party lines; nominees languishing in committee; the use of procedural rules, including the filibuster, to prevent or influence an evaluation of nominees on the merits; and the conflict and partisanship that characterize the process.

Two incidents at the beginning of this year seemed to exemplify the current problems. First, in early January, William Pickle, the Senate's Sergeant-at-Arms was called in to investigate an allegation that staff members of Senate Republicans had accessed confidential computer files and read and distributed to the media strategy memorandums written by Democratic aides about judicial nominees. Second, on January 16, President Bush used the Executive power of recess appointments to seat Mississippi District Judge Charles Pickering on the Fifth Circuit Court of Appeals after Senate Democrats had filibustered his controversial nomination. (Since the recess appointment required Pickering to give up his district court judgeship and expires with the end of the next Senate session later this year, the curious effect, unless the Senate decides to confirm Pickering to the circuit court, will be to remove him entirely from the federal bench.)

If indeed there is a confirmation crisis, the cause is far from clear. Some observers blame the partisan tactics of key individuals involved in the confirmation process. Other critics view the problem to lie in improper consideration of the political ideology of judicial candidates. Still other observers point to a modern distortion of the Article II procedure by which the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court" and of the lower federal courts.

To be sure, not everybody is in agreement that there is a confirmation crisis. Some observers see a process that, while often highly charged, continues to work just as it is intended. On this view, the small number of current judicial vacancies tells more of the story than do a few highly publicized incidents.

This JURIST Symposium brings together leading legal scholars and political scientists to reflect upon the current state of judicial appointments and to consider what changes, if any, are needed in the procedures for selecting federal judges. The contributors offer very different assessments of where we are and how we got there. Michael Gerhardt, who admits to losing sleep over judicial confirmations, canvasses the lessons-positive and negative-the current process teaches young observers about our democracy. Stephen Presser, arguing that judicial confirmation has drifted far from its constitutional moorings, identifies as a root problem today the influence of political ideology in the judicial confirmation process and in the broader practices of judicial decision-making. John Anthony Maltese, who traces current problems to reforms President Carter initiated and to the rise of divided government, argues that the appointment process, while not in crisis, is under some heavy strains from the modern political climate. Elliot Slotnick argues that despite some occasional heated battles, the low overall vacancy rate on the federal bench demonstrates that the judicial confirmation process is working well.

The Symposium contributors offer a range of innovative proposals for reforming the procedures used to appoint federal judges. Sheldon Goldman, who argues that the Senate needs to implement bipartisan reforms, including a commitment to a timely up or down vote on all nominees, urges that before any reform is possible, the President should reappoint candidates who were nominated by President Clinton but held up by Senate Republicans. Judith Resnik asks us to reconsider the very concept of life tenure, particularly in light of the fact that much adjudication is delegated nowadays to non-Article III judges. Nancy Scherer, who traces the current state of affairs to the rise of the mass party system in the 1960s and the use of judicial appointments to mobilize voters, argues that the politicization of judicial conformation is misguided because judges are rarely effective promoters of social policy. Jack Balkin argues that the current state of judicial confirmation is merely a symptom of some much deeper problems in American politics.

The real test of current procedures for choosing federal judges may come with the next appointment to the Supreme Court, the first since Stephen Breyer joined the Court in 1994. Stephen Choi and Mitu Gulati propose selecting the next Supreme Court justice based on a tournament among the judges who sit on the courts of appeals. John Orth and Ahmed Taha consider the strengths and limitations of this proposal.

The power of judicial review that dates to Marbury is just one way in which the federal courts influence the lives of citizens. Who sits on those courts is a matter of profound importance. The essays in this Symposium challenge us all to think about the procedures for selecting our federal judges and whether, in the Republic's third century, there may be room for improvement.

April 15, 2004

• Read more JURIST essays on judicial confirmations - click here.