Judicial Nomination Reform - Research Paper Example

Section/# Judicial Nomination Reform Although a number of areas of the current judiciary require a level of reform, it is the belief of this particular author that one of the areas of reform in the judiciary that requires reform to a higher degree than other areas is that of the judicial nomination process. The recent reinterpretation of the way the constitution defines the level and extent to which the Congress engages in this process as well as further defining the determinants that define the way the president makes such initial selections. As such, this brief paper will seek to lay out a few of the reasons that this author believes reform is a pre-requisite to effecting a lasting and positive change upon the process of judicial nomination. Whereas the level and extent to which other reforms may be beneficial to the judicial process are not in question, this author will lay out but a few salient reasons why the judicial nomination process is one of the most important functions that government makes with regards to the functionality, diversity, fairness, and representative nature that the judiciary should display. Furthermore, due to the fundamental shift in the judicial nomination process that has been experienced over the past 50 years, this author will seek to lay out a series of issues that define the shortcomings that the current legal system experiences as well as seeking to law out what steps could be effected in order to ameliorate these. The first issue that this analysis will consider is the fact that the judicial nomination process has turned into what can only be considered a type of media and political frenzy. Whereas the constitution states that the president should seek the counsel of congress in order to appoint a judge, the actual process whereby the judge is vetted is not enumerated upon and has largely become to be defined by Congress as something of an evolving practice that draws on prior precedence and the political fervor of a given point in time (Gonzalez et al 2003). As Congress itself, nor the president for that matter, can be trusted to make a determination based upon qualifications, the process oftentimes diverges into a political mudslinging contest where both sides attempt to paint the other as either obstructionist or attempting to push through some form of radical judge to the bench. As such, this interpretation of the law and precedent is neither helpful to the understanding of the constitution nor the judicial nomination process. As a function of this, the following analysis will detail and proscribe a set of solutions with regards to this particular shortcoming. Recent court appointments have highlighted the fact that rather than determining the overall qualifications of the judge, the opposing political party merely regresses to performing a series of partisan character attacks as a means to stymie the process and generate a degree of public awareness and involvement (McGinnis et al 2010). This of course is counterproductive and forces the process itself to be a multipart game that both the Congress and the sitting president at the time engage upon. Oftentimes the way that such a game progresses is that the president will nominate a series of un-selectable and/or unqualified candidates as a means to exhaust the Congress or the general public with the intractability of the process. Only once this has been accomplished, the president will nominate the candidate that he truly wanted to be make it through the process in the first place. This game theory is counterproductive, inefficient, and wastes a great deal of shareholder time and energy. A better and more efficient process for nomination and selection is therefore necessitated in order to institute a process that is not only more efficient but also a better representation of how the constitution originally envisioned the process of judicial nomination. In this sense, the entire process is hijacked at the expense of political posturing, partisanship, and a degree of political gain that might be evoked. Rather than seeking to encourage a degree of professionalism and exceptional jurisprudence to the court system, the process has ultimately diverged to represent the very posturing that should be far removed from the definition of the judiciary branch (Feldman 2012). This political opportunism has worked to degrade the overall level of effectiveness that the judicial, legislative, and executive branches can affect. Due to the fact that opportunism and posturing has come to define the process, it has become nearly impossible for the correct candidate that exhibits the best qualifications and is indicative of the growing level of diversity that the country experiences to be selected for the job. Instead, a pervasive sense of over-politicization where both parties vie to be the ones to either ramrod or stymie the selection of a given appointee takes precedence over seeking to find the most suitable, moderate, and qualified candidate. Rather than allowing the process to be defined by political bickering and showmanship, the judicial selection process must be redefined and/or reformed to allow a level of logic and understanding to pervade the process. Rather than attempting to dredge up a sense of outrage from the electorate, Congressional members should seek to come to an agreement on the best candidate with the highest level of qualifications that will interpret the constitution with the most accuracy within the face of the current legal demands that both parties envision will face justices within the coming years. Similarly, rather than the president merely parading a cavalcade of misfits through the Congress as a means to eventually leverage public opinion in his favor with reference to the confirmation of a particular judge, a far better and more efficient process would necessarily involve a thoughtful analysis with regards to which ultimate candidates would best be suited towards enumerating upon and seeking to ameliorate the legal needs that are experienced within the system (Jerome et al 2009). As such, reform on both of these sides is necessitated as a means to bring the process of judge nomination and confirmation more in line with the means by which the constitution originally intended it to be carried out. The secondary issue related to the reform of the judiciary that this paper will seek to analyze is with relation to the fact that the judicial nomination and approval process is not predicated on providing the court with a thorough and complete representation of American society. Whereas the ascension of Sandra Day O’Connor to the court under Ronald Reagan’s presidency was viewed as a resounding success for women around the country, twenty years later, the court itself has only 2 women justices at out of a nine member court (Franc 2004). Similarly, only one minority currently sits on the bench. Such a misrepresentation of the demographic makeup of a nation that is composed of around 30-40% of non-white individuals as well as at least 50% female population is not represented on the composition of the nation’s highest court. Naturally such a misrepresentation is not due to the fact that some political commentators have cited that there are merely a preponderance of qualified white males; rather it is indicative of a much more systemic problem that underlies the selection and confirmation process that defines the court system. Such an occurrence is not by accident; rather, it is the result of the way in which judicial nomination process is affected and the fundamental nature of the US Congress (Brand 2010). With respect to this assertion, it is beyond the scope of this paper or this analysis to indicate ways that the fundamental diversity of a democratically elected government might be improved; however, for the process of judge nomination and confirmation, a firm set of guidelines should be established that help to direct the process in the same means that other governmental positions are filled. Due to the fact that the United States Congress is also disproportionally representative of American society, it is rational to expect such a body would pass along its level of disproportionate representation and white male-dominated focus that is represented within the Congress. Due to the fact that judges must be confirmed and stalemates must be avoided, it is in the best interests of all involved to select those nominations that represent the lowest common denominator in many senses of the word. Sometimes this means that a more moderate judge is tapped for the positions; however, the spillover effect is that the president oftentimes selects a judge that will be identifiable with the shareholders with the Congress (Craig 2008). This oftentimes leads to the selectee being what many have dubbed, “male, pale, and Yale”. As a function of the fact that the Congress is so unrepresentative of the diversity, both gender and racial, that exists within the nation, it is only fair to assume that the same level of misrepresentation would be passed along to the judiciary branch via the nomination/confirmation process. What is interesting about the overall lack of diversity that is exhibited within the court is the fact that although Affirmative Action is the law of the land, it somehow has escaped the application within the Supreme Court as well as lower court appointments. Moreover, the general trend shows positively no signs of being affected for the positive in the near future (Murphy 2006). For this purpose, a fundamental change in the way in which justices are nominated and approved should be affected. However, in order to affect this, the way in which the Congress confirms presidential nominations, as well as the underlying rubric that the president chooses with regards to selecting a justice will need to be altered. Obviously, one of these without the other will be purposeless. As such, the process itself is stuck between a prevailing culture and the way in which the system works. With respect to how reform could attempt to revitalize and re-engage key shareholders within this process as a means to reform the process of judicial nomination, it is this author’s suggestion that the process must entail more than merely the president putting forward an individual and awaiting a confirmation from a politically divided Congress (Sollenberger 2010). Rather, due to the fact that the interpretation of the constitution on this matter has evolved a great deal within the past 60 years, it would behoove all shareholders involved to further define the process as well as to include some key metrics and determinants that would govern who should be selected for initial nomination. Due to the fact that Affirmative Action and quotas have been upheld by the Supreme Court itself, it would only make logical sense to employ a similar practice within the selection of those justices that may eventually go on to serve on such a body (Coryn 2003). Moreover, a type of overarching rubric to nominee selection would help to reduce a great deal of the political bickering and posturing that takes place once the process itself is initiated. Furthermore, a more careful approach to the issue would likely help to take a great deal of the politicization that has developed over the past few decades out of the process. Although such an approach would be imperfect, it would help to formalize a means by which both groups of shareholders could engage in a more defined and rational process than what currently exists. Although this brief essay cannot hope to engage with the varying levels of the depth and complexity that could be solved by seeking to reform the judicial nomination and confirmation process, the issues that have been raised as well as the key steps that should be taken which have been outlined in this essay form a starting point from which the reader can begin to comprehend the level of solutions that could exist to such a problem. Furthermore, although a plethora of changes would likely help to reform the judiciary, the two that have been enumerated upon would go a long way in helping to transform the process and the end result of the judicial nomination procedure into something that is both more reflective and more indicative of the direction that the nations judiciary should pursue. 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