It's
time for Congress to fix the judicial confirmation process and pass
real legal reform. Neither issue is new.
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"Beating
a Dead Horse"
Chief
Justice William Rehnquist kicked off the New Year with a familiar
mantra, pleading with Congress to help extricate the federal judiciary
from its current crisis of overcrowded dockets, too few judges and
inadequate resources. "The 2002 Year-End Report on the Federal
Judiciary is my 17th," Rehnquist wrote. "As I look back on these
reports, I am struck by the number of issues that seem regularly
to crop up, or perhaps never go away - judicial vacancies, the need
for additional judgeships, judges' salaries, judicial appropriations."
Mr.
Rehnquist's pleas for Congressional action on each of these issues
have for years fallen on deaf ears. Each, he writes, "relates to
the fundamental interdependence of our three branches of government."
Therefore, each deserves significant and timely consideration in
this session of the 108th Congress.
However,
there is more that can and should be done.
"At
the risk of beating a dead horse," Rehnquist reiterated the need
to compensate judges fairly. "Diminishing judicial salaries affects
not only those who have become judges, but also the pool of those
willing to be considered for the federal bench." Yet, while closing
the pay "chasm" between the public and private sectors is crucial
to retaining current members of the judiciary and attracting talented
lawyers to serve on the bench, the pool of prospective federal jurists
is significantly more affected by the dreaded judicial confirmation
process.
The
torturous and politically charged process was made worse in the
107th Congress, as Democrats on the Senate Judiciary Committee,
parroting the talking points of liberal special interest groups,
waged a war of character assassination against many nominees. Ideology
replaced traditional considerations of judicial temperament, experience
and respect for the rule of law as the benchmark for confirmation.
The constitutional integrity of the Senate's "advise and consent"
function was lost, as the committee's majority used partisan politics
as its justification to deny many nominees hearings, and others,
who received hearings, votes on the Senate floor.
Many,
if not most, of the issues plaguing the federal judiciary could
be resolved if Congress would repair the hobbled confirmation process.
It can start by adopting a proposal outlined by President Bush last
October. The plan sets strict but fair timelines for all parties
involved in the process, in all three branches of government, to
ensure a fully staffed judiciary in the future, regardless of which
party controls the Senate or the White House. It requires that
every nominee receive a hearing in the Judiciary Committee and a
vote on the Senate floor. Perhaps most importantly, it would reinstate
dignity and civility back into the process, making it more appealing
to a larger talent pool of prospective federal jurists who are currently
turned off by the calamity.
Congressional
action on legal reform is also urgently needed to alleviate the
mounting workload in the federal courts. Filings involving personal
injury cases at the district court level quadrupled in 2002 to a
whopping 29,636. Many of these cases were related to asbestos,
the trial bar's current favorite bread and butter issue.
While
the ability of consumers to seek damages when "real" harm is done
constitutes a fundamental safeguard against corporate wrongdoing,
trial lawyers have highjacked the judiciary with filings based on
trial-and-error, obscure legal theories and frivolous lawsuits in
search of a big payday. Reasonable protections against such lawsuits
will certainly help to alleviate the burgeoning caseload in the
courts.
In
addition, members of Congress could get a nice two-fer out of the
deal. Real legal reform would free up billions of dollars currently
lost in the pockets of those trial lawyers who choose to manipulate
the system at the expense of corporations and consumers. Real legal
reform would create thousands of jobs. Real legal reform is an
economic stimulus in-and-of itself.
It's
time for Congress to fix the judicial confirmation process and pass
real legal reform. Neither issue is new. Both will do the federal
judiciary significant justice. Unfortunately, to steal a phrase
from Mr. Rehnquist, these pleas are made at the risk of beating
a dead horse. Hopefully, the 108th Congress will prove otherwise.
[Posted
January 9, 2003]
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