Advice and Dissent

Advice and Dissent: The Struggle to Shape the Federal Judiciary

Copyright Date: 2009
Pages: 198
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    Advice and Dissent
    Book Description:

    For better or worse, federal judges in the United States today are asked to resolve some of the nation's most important and contentious public policy issues. Although some hold onto the notion that federal judges are simply neutral arbiters of complex legal questions, the justices who serve on the Supreme Court and the judges who sit on the lower federal bench are in fact crafters of public law. In recent years, for example, the Supreme Court has bolstered the rights of immigrants, endorsed the constitutionality of school vouchers, struck down Washington D.C.'s blanket ban on handgun ownership, and most famously, determined the outcome of the 2000 presidential election. The judiciary now is an active partner in the making of public policy.

    Judicial selection has been contentious at numerous junctures in American history, but seldom has it seemed more acrimonious and dysfunctional than in recent years. Fewer than half of recent appellate court nominees have been confirmed, and at times over the past few years, over ten percent of the federal bench has sat vacant. Many nominations linger in the Senate for months, even years. All the while, the judiciary's caseload grows.Advice and Dissentexplores the state of the nation's federal judicial selection system -a process beset by deepening partisan polarization, obstructionism, and deterioration of the practice of advice and consent.

    Focusing on the selection of judges for the U.S. Courts of Appeals and the U.S. District Courts, the true workhorses of the federal bench, Sarah A. Binder and Forrest Maltzman reconstruct the history and contemporary practice of advice and consent. They identify the political and institutional causes of conflict over judicial selection over the past sixty years, as well as the consequences of such battles over court appointments.Advice and Dissentoffers proposals for reforming the institutions of judicial selection, advocating pragmatic reforms that seek to harness the incentives of presidents and senators together. How well lawmakers confront the breakdown in advice and consent will have lasting consequences for the institutional capacity of the U.S. Senate and for the performance of the federal bench.

    eISBN: 978-0-8157-0391-4
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Foreword
    (pp. ix-x)
    Strobe Talbott

    It’s a safe guess that the Framers of the Constitution would have serious concerns about how the third branch of government is faring in the early twenty-first century. It would be hard for them to square their ideal of judges as neutral arbiters with the often intense partisan and ideological scrutiny of nominations for every level of the federal judiciary.

    InAdvice and Dissent,Sarah Binder, a senior fellow in Governance Studies at the Brookings Institution, and Forrest Maltzman, a professor of political science at George Washington University, review more than six decades of the practice of advice and consent...

  4. Acknowledgments
    (pp. xi-xiv)
  5. 1 The Struggle to Shape the Federal Judiciary
    (pp. 1-14)

    For better or worse, federal judges in the United States are asked today to resolve some of the most important and contentious public policy issues. Although some hold onto the notion that the federal judiciary is simply a neutral arbiter of complex legal questions, the justices and judges who serve on the Supreme Court and the lower federal bench are in fact crafters of public law. In recent years, for example, the Supreme Court has bolstered the rights of immigrants, endorsed the constitutionality of school vouchers, struck down Washington, D.C.’s ban on hand guns, and most famously, determined the outcome...

  6. 2 The Origins and Evolution of Advice and Consent
    (pp. 15-57)

    Unfortunately for Judge James Wynn, nominated twice by President Bill Clinton for a vacancy on the United States Court of Appeals for the Fourth Circuit, the blue slip does matter. A blue piece of paper distributed by the Senate Judiciary Committee to the two home state senators for each nomination, the blue slip allows senators to register their objections to judicial nominees slated to fill vacant federal appellate court judgeships designated for their home state. In the case of Judge Wynn, Senator Jesse Helms (R-N.C.) availed himself of the blue slip in 1999. Signaling his intention to block the nomination,...

  7. 3 How Senators Influence the Choice of Nominees
    (pp. 58-78)

    In the spring of 2008, more than forty federal judgeships sat vacant. For roughly 40 percent of the vacancies, President George W. Bush had yet to submit a nomination—even though some of the vacant judgeships were located on courts with the largest caseloads and backlogs of the federal judiciary.¹ Presidential sluggishness in naming nominees in 2008, a pattern we see stretching back many years, is puzzling. Why, if the makeup of the federal bench is such a central component of the policy agendas of recent administrations, would a president ever fail to swiftly nominate a candidate for the federal...

  8. 4 The Dynamics of Senate Confirmation
    (pp. 79-103)

    The refrain that advice and consent has always been political—the nothing-new-under-the-sun account—encounters rough sledding when we move our focus to the Senate’s record in confirming nominees over the past six decades. As we showed in figure 1-1, confirmation rates for presidents’ nominations to the U.S. courts of appeals have steeply declined in recent years. Between 1947 and 1950, all seventeen nominees to the federal appellate bench were confirmed. Between 2001 and 2008, roughly one in two nominees was confirmed (table 4-1). The drop-off is stunning, suggesting a sea change in the Senate’s treatment of presidents’ nominees for the...

  9. 5 Constructing the Federal Bench
    (pp. 104-126)

    The contours of the federal judiciary are not fixed in stone. Article III, section 1 of the U.S. Constitution authorizes Congress to design the federal bench and to decide whether and how it should be changed. Such decisions are consequential, not least because they afford a governing majority an opportunity to mold the courts to its advantage. A Republican Congress with a Republican in the White House, for example, could choose to create new trial court judgeships in circuits represented by Republican senators—affording the party an advantage when appointments are made.¹ As we think about the ways in which...

  10. 6 The Consequences of Conflict over Judicial Selection
    (pp. 127-142)

    Disagreements over who should serve on the federal bench have their roots in the myriad tensions that arise between the parties and branches over the formation and interpretation of public law. These disagreements have become especially pitched and pronounced in recent years. They have also become consequential in potentially harmful ways. White House foot-dragging in choosing nominees, Senate delays in confirming new judges, and intense political campaigns against judicial candidates deemed out of the mainstream—these developments in advice and consent have downstream effects: they take their toll on judges and on the federal bench. Careful scrutiny of candidates for...

  11. 7 Reforming Advice and Consent
    (pp. 143-160)

    Cooperation and conflict over the shape of the federal bench have been enduring themes over the course of the history of the judiciary. Some argue that contemporary judicial selection reflects an old story of perennial disputes over the makeup of the bench: selecting judges has always been a political exercise. Others point to an abrupt change in the practice of advice and consent, the result of the battle over confirming Robert Bork to the Supreme Court in the 1980s, typically held to be the “big bang” of contentious judicial selection. We argue instead that understanding the dynamics of judicial selection...

  12. Notes
    (pp. 161-190)
  13. Index
    (pp. 191-198)
  14. Back Matter
    (pp. 199-199)