The Magazine

Droit du Sénateur

Senatorial privilege vs. quality judges.

Mar 27, 2006, Vol. 11, No. 26 • By EDWARD WHELAN
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PRESIDENT BUSH RECENTLY NOMINATED MILAN D. Smith Jr. to fill a longstanding vacancy on the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit, which covers nine western states, is a notorious bastion of liberal judicial lawlessness. So the White House should be looking to fill the vacancy with an outstanding jurist who is learned in questions of federal constitutional and statutory law and who is prepared to dedicate two decades or more to the arduous task of helping to transform that court.

Unfortunately, Smith hardly fits the bill. A Los Angeles-area attorney, Smith, 64, has specialized for nearly four decades in real estate transactions--a specialty that has little bearing on the questions that occupy federal courts. In his one term as a member of a state antidiscrimination commission, he "distinguished himself" by "his time-management skills," says one of his supporters. He recently explained his decision to step down from the commission by implying disdain for his fellow party members: "I'm a Republican, but I'm a Republican with a heart."

Consider also David L. Bunning, whom President Bush nominated to a federal district judgeship in 2001. Thirty-five years old when he was nominated, Bunning had been a lawyer for only ten years. Citing his "very limited and shallow" experience with civil cases, his not "particularly challenging" criminal caseload as a federal prosecutor, his unimpressive writing, and his middling academic record, the ABA rated Bunning "not qualified" for a judgeship. Whether or not one credits the ABA rating--a minority of the committee did find Bunning "qualified"--it would be difficult to argue that Bunning was prime judgeship material. But the Senate, with a Democratic majority intent on blocking many of the president's judicial nominees, expeditiously and unanimously confirmed Bunning.

Smith and Bunning might buck the odds and prove to be outstanding judges, and I certainly don't mean to suggest there is anything exceptional about their questionable qualifications. On the contrary, unpromising judicial picks have been all too common among President Bush's lower-court nominees. But what the low caliber of these nominees helps demonstrate is the extraordinary and regrettable influence senators exercise over federal judgeships in their home states. For the key facts driving Smith's candidacy are that Barbara Boxer, the ultraliberal senator from California, recommended his nomination and that Smith is the brother of Oregon's Republican senator Gordon Smith. His brother and Boxer, Milan Smith says, "are very good friends." As for Bunning, the district judgeship that he now occupies is in Kentucky, the home state of Republican senator Jim Bunning, who, not coincidentally, is his father.

For all the attention given to the Democratic filibuster of judicial nominees in recent years, the greater impediment to President Bush's ability to appoint high-quality practitioners of judicial restraint to the federal district and appellate courts comes from obscure Senate practices that enjoy widespread bipartisan support from senators. These practices exist because they serve the narrow interests of individual senators. They are, in short, perquisites of membership in the club known as the United States Senate.

After his remarkable successes in winning the confirmations of Chief Justice John Roberts and Justice Samuel Alito, President Bush must return to the less glamorous work of filling vacancies on the lower courts. This work is more difficult not only because of the large number of open seats but because of the great influence that home-state senators believe themselves entitled to exert over lower-court nominations.

This influence can manifest itself in two ways: first, through the Senate Judiciary Committee's blue-slip policy, which serves primarily as a tool of senators in the party opposite the president's; and second, through the entrenched attitude of same-party senators that they have a virtual right to designate judicial nominees in their states.

LET'S BEGIN WITH THE BLUE-SLIP POLICY, which is generally thought to have arisen as an informal Senate Judiciary Committee practice some 50 years ago. The "blue slip" refers to the piece of paper that the chairman of the committee sends to a senator informing him that the president has made a nomination to a position in his home state and inviting him to object or offer support. A senator who objects can express his objection on the blue slip (a "negative blue slip").