By Lee Epstein
From Louis Brandeis to Robert Bork to Clarence Thomas, the nomination of federal judges has generated extreme political clash. With the arriving retirement of 1 or extra preferrred courtroom Justices--and threats to filibuster decrease court docket judges--the choice technique might be, once more, the heart of red-hot partisan debate. In suggestion and Consent, prime criminal students, Lee Epstein and Jeffrey A. Segal, provide a quick, illuminating Baedeker to this hugely vital approach, discussing every little thing from constitutional heritage, to an important alterations within the nomination of judges and justices, to the position of the Judiciary Committee in vetting nominees. Epstein and Segal make clear the function performed through the media, by means of the yankee Bar organization, and by way of exact curiosity teams (whose efforts helped defeat pass judgement on Bork). even though it is usually assumed that political clashes over nominees are a brand new phenomenon, the authors argue that the appointment of justices and judges has continually been a hugely contentious process--one mostly pushed through ideological and partisan matters. The reader discovers how presidents and the senate have attempted to remake the bench, starting from FDR's arguable "court packing" scheme to the Senate's construction in 1978 of 35 new appellate and 117 district court docket judgeships, permitting the Democrats to form the judiciary for years. The authors finish with attainable "reforms," from the so-called nuclear alternative, wherein a majority of the Senate may vote to ban filibusters, to the much more dramatic advice that Congress get rid of a judge's existence tenure both by means of time period limits or obligatory retirement. With key appointments looming at the horizon, recommendation and Consent offers every thing involved electorate want to know to appreciate the partisan rows that encompass the judicial nominating strategy.
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Extra info for Advice and Consent: The Politics of Judicial Appointments
Short of unanimous consent, such debate can be ended only by invoking cloture, a formal motion to close debate. Under current Senate rules, cloture requires the concurrence of sixty senators, leaving a mere forty-one senators the power to thwart a vote if they so choose. As far as we can tell, prior to 1968 the Senate never invoked the filibuster to block a judicial nominee. In that year, a coalition of Republicans and conservative southern Democrats, hopeful that Richard Nixon would take the presidency in the fall election, prevented a vote over Abe Fortas, an associate justice whom Lyndon Johnson was attempting to promote to the position of chief justice.
In Roosevelt’s case, his party was already in firm control of the presidency and legislature. His intent was to bring the “obstructionist” third branch into the fold. The political circumstances surrounding the enactment of the 1801 and 1891 acts were somewhat different—the Federalists of 1801, for example, already had captured the judiciary and only wanted to strengthen their hold before ceding the rest of the government to their opponents. And yet all three episodes share a crucial political feature: in each case, the party proposing the bench expansion would be able to name the new judges.
The Senate shows the same courtesy over appointments to the courts of appeals. Even though the circuits cover more than one state, meaning that senators from several states can lay claim to a single appointment, it is generally the case that judgeships have been allocated by custom among the component states. Consequently, when a vacancy occurs, a senator frequently asserts that the successor should be from the same state as the former incumbent, thus giving the senator from that state a lien on the 24 Advice and Consent position.
Advice and Consent: The Politics of Judicial Appointments by Lee Epstein