Those of us who care about the proper role of judges and their correct interpretation of the Constitution must not get complacent after the tremendous successes we have witnessed over the past five months. The Judges War Continues, and It Must

Those of us who care about the proper role of judges and their correct interpretation of the Constitution must not get complacent after the tremendous successes we have witnessed over the past five months. While we rightfully can applaud the nominations and confirmations of Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., to the Supreme Court of the United States, much work remains.

Multiple well-qualified nominees to the U.S. Courts of Appeals remain in limbo, as some of them have for years, blocked by the partisan threat of filibusters preventing their confirmations if simple majority up-or-down votes in the U.S. Senate actually took place. After months of focused attention on two seats simultaneously opening up on the High Court, there are still 19 vacancies on the federal appellate courts.

At the same time, it goes without saying that no one on the highest court in the land is getting any younger. Indeed, despite the recent confirmations of Chief Justice Roberts, 51, and Justice Alito, 55, a majority of the justices remain 66 years of age or older, with Justice John Paul Stevens the eldest at 85.

Just two days after Justice Alito was sworn in as the 110th Supreme Court Justice, Newsmax reported “[s]peculation is that Justice John Paul Stevens, the [C]ourt’s most liberal member, will retire in the near future, possibly as soon as this year.” While no one can accurately predict just when the next High Court vacancy will open up -- even Justice Sandra Day O’Connor’s biographer Joan Biskupic swore up and down that the first female justice would not retire at the end of the last term -- any life expectancy table will show that the odds decidedly favor a vacancy sooner rather than later.

In other words, winning two Supreme Court confirmation battles, whether you consider them to be contested or not, does not mean that we have achieved our goal of ensuring the long-term integrity of the federal judiciary and, more importantly, the Constitution. Rather, these were mere steps along the path.

As the liberal Alliance for Justice wrote in a 2005 fact sheet, “Although the Supreme Court has the discretion to review all cases going through the federal system, in practice, the federal appellate courts are the courts of last resort for the vast majority of federal cases.”

The math is simple here. The U.S. Courts of Appeals decide thousands of cases every year, and the Supreme Court reviews and issues decisions in less than a hundred of those cases each term. Thus, it is simply a reality that the judges on the federal appeals courts can either cause or cure most of the legal and constitutional mischief without as much as a word from the highest court in the land.

Moreover, as was apparent from the two most recent successful nominees, Supreme Court justices aren’t born, they’re raised. What better place to “raise” them than on a federal appeals court where they get on-the-job training with oversight by their potential future colleagues? It’s no coincidence that every current justice spent some time on a U.S. Court of Appeals immediately before being nominated and confirmed for a move to One First Street.

Indeed, the short list for the two most recent Supreme Court vacancies read like a who’s who of right-leaning (and thinking) federal appellate jurists in the prime of their judicial careers. Outside of the duo eventually nominated and confirmed, there was Judge Michael McConnell of the 10th Circuit, Judges J. Michael Luttig and J. Harvie Wilkinson of the 4th Circuit, and Judges Edith Clement, Emilio Garza, Edith Jones and Priscilla Owen of the 5th Circuit, among others. In other words, if we can’t continue to staff the federal appellate bench with the highest quality legal minds, our own High Court will suffer in the future.

All this means exactly what we said at the outset -- the celebration of our recent successes must be short so we can get back to the long-term work of ensuring the federal courts, all of them, are filled with jurists who understand their proper role in upholding rather than rewriting the law. The Judges War continues. That’s not a prediction, it’s a necessity.

February 9, 2006
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