Two judges and a law professor discuss selecting judges in the Trump eraand Ariel Chen | Apr 3, 2017
U.S. Court of Appeals for the District of Columbia Circuit Judge David Tatel, former Chief Justice of the New Jersey Supreme Court Deborah Poritz, and Fordham University Professor of Law Jed Shugerman discussed the issues behind the nomination and confirmation of federal and state judges and proposed solutions to break the partisan logjams in the appointment process. The conversation was moderated by Leslie Gerwin, the University’s Associate Director of the Program in Law and Public Affairs.
Tatel began by discussing the increased partisanship involved in the process of nominating and confirming judges to the U.S. Supreme Court. He showed the audience a graph, which plotted the average number of "no" votes cast for each judge nominated to the Supreme Court during three periods of American history.
From 1789 to 1967, the average number of "no" votes per judge was four, and Tatel noted that most judges were confirmed unanimously. This trend changed after 1968, when President Lyndon Johnson nominated Associate Justice Abe Fortas to be the Chief Justice of the Supreme Court. The U.S. Senate rejected Fortas' nomination, since he had personally advised President Johnson. In addition, Tatel said that 1968 was a pivotal year, as the height of President Richard Nixon's "Southern Strategy" during the 1968 presidential election.
These events help explain why there were four times as many "no" votes on Supreme Court nominations from 1967 to 2006. The final time period, 2006 to today, featured twice as many "no" votes as the period from 1967 to 2006. Tatel pointed out that the last three justices to be nominated and confirmed to the Supreme Court, Associate Justices Samuel Alito '72, Sonia Sotomayor '76, and Elena Kagan '81, were all confirmed on partisan lines.
"Why do nominations go from nonpartisan to partisan?" Tatel said. "The reason, I think, is that the country no longer sees our courts as institutions that decide cases based on the law. Decisions are unaffected by the parties’ or judges’ ideology or affiliation. Courts are seen as places where judges use their ideology to get a result you can’t get in the political realm."
Tatel then spoke about his court, the D.C. Circuit, and explained that the selection of judges to this court mirrors that of the nomination process for the U.S. Supreme Court, but that there is no senatorial courtesy. He displayed a chart showing statistics about judges nominated to the D.C. Circuit from 1981 onward, specifically focusing on the number of "no" votes and the length of time each nomination was pending.
Tatel said that there were some takeaways from this graph. The first is that prior to 1995, every nominee to the D.C. Circuit was confirmed in a relatively short amount of time and virtually unanimously. After 1995, Tatel noted that there were six failed nominations, and the ones who were confirmed were confirmed on partisan lines and took a longer time to be confirmed.
Most notably, the last three nominees to the D.C. Circuit were confirmed only after the Senate invoked the "nuclear option," which ended the filibuster and enabled the judges to be confirmed by simple majority vote. Tatel pointed out that again, these confirmation votes occurred on mostly partisan lines.
Tatel finished by pointing to the recent confirmation hearing for Judge Neil Gorsuch to the U.S. Supreme Court, which featured Senators asking Gorsuch how he would rule on certain cases, as well as the statements from 2016 presidential candidates Hillary Clinton and Donald Trump on how they would use litmus tests to select judges to the Supreme Court to illustrate the increasing partisanship of confirmation votes.
Poritz began her remarks by talking about the importance of state courts, since most people don't know much about them. She explained that state courts decide 95 percent of cases in the United States and create the public perception of justice. She noted that state courts also decide cases on redistricting for elections at the state and national level. Poritz pointed out that certain states elect their judges, so there is a high amount of money spent campaigning for judges who could be the deciding vote on high profile cases, including redistricting.
"State courts are involved in redistricting, which is in part why there’s been a particular interest in states where judges are elected both in what kind of decisions those judges are making, and the role that those courts play in the redistricting process," she said.
The event, titled "Selecting Judges in the Trump Era," was sponsored by the Program in Law and Public Affairs and held at 4:30 p.m. at Dodds Auditorium, Robertson Hall.