JURIST Guest Columnist
Carl Tobias of the University of Richmond School of Law says that in the face of the American electorate's desire for "change" and the need to build some measure of bipartisan consensus after a divisive campaign season, the new "lame duck" session of Congress might profitably focus on questions involving the federal judiciary ...
The November 4 federal elections have left unclear precisely what, if anything, the 110th Congress can achieve in the lame duck session that convenes today. The inevitable jockeying for advantage, as the Democrats await their enhanced Senate and House majorities in the 111th Congress and Executive Branch control, suggests that little apart from economic measures will receive effective treatment before January. However, if Democrats cooperate with Republicans in a few areas which are critical to the federal courts, they could secure immediate and long-term benefits for the political parties, the judiciary and the country.
Judicial selection is an obvious field where Democrats may cooperate with Republicans and make progress. There are presently 42 federal court openings for which President George W. Bush has nominated 26 candidates. The Democratic Senate majority should decide which nominees are acceptable because they are very smart, independent and diligent, have moderate ideological perspectives and possess balanced judicial temperament, while Democrats should help confirm the nominees. The majority can do so with prompt floor votes on nominees the Judiciary Committee favorably considers, expeditious approval of those awaiting panel votes and swift hearings for the remaining nominees. An instructive example is Gregory Goldberg whom Bush nominated to the U.S. District Court in Colorado, which has two of seven seats open and two new judges approved in September.
Another important concept would be passage of a thorough judgeships bill, the first comprehensive legislation since 1990. The Judicial Conference has recommended that Congress authorize more than 60 new appellate and district court positions, suggestions that the courts’ policymaking body premises on conservative estimates of work and case loads. Confirming nominees and approving and filling new judgeships would enable the judiciary to resolve lawsuits more promptly, inexpensively and fairly.
A related notion would be passing a measure that increases federal judges’ compensation. Protracted legislative inaction on judicial salaries has eroded many judges’ standard of living, prompted some jurists to retire early or quit and discouraged strong candidates from even considering judicial service. Adoption of the judicial pay legislation could prevent experienced judges from leaving the bench and would encourage a broader pool of excellent candidates to contemplate judicial service.
The American electorate clearly expressed support for change on November 4. Democrats must respond to this call for reform. One valuable starting point would be the federal judiciary in the lame duck session which opens today. If Democrats work closely with Republicans on federal courts issues, the parties can begin restoring public confidence in Congress and earn the trust which the public bestowed on election day.
Carl Tobias is the Williams Professor of Law at the University of Richmond
