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  Confirmation Watch

It's time for Congress to fix the judicial confirmation process and pass real legal reform. Neither issue is new.




"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]