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Written by Hazel Weiser

Attorney General Eric Holder at May 7 White House briefing on judicial vacancies

Felix Frankfurter could never be confirmed as a Supreme Court justice in today’s America.  He was a prolific scholar, leaving a trail of law review articles and books that even his contemporaries at Harvard Law School branded as radical.  He was a principled activist.  He organized an investigation into the notorious Palmer raids, orchestrated by a young ambitious J. Edgar Hoover.  Frankfurter and a small group of colleagues published “Report to the American People,” May 28, 1920, in which they accused then Attorney General Alexander Mitchell Palmer and Hoover of an “assault upon the most sacred principles of our Constitutional liberties.”  Weiner, Tim (2012). Enemies: A History of the FBI. Random House, Inc.  (The Palmer raids accurately foreshadowed the American response to 911.)

The Palmer raids rounded up thousands of mostly immigrants who were suspected of being Communists and anarchists.  No one knows for sure how many people were pulled off the streets, out of their homes, and away from their families.  Those men and women were beaten, tortured, and held incommunicado.  Over five thousand men and women is the estimate.  Those who were born abroad were summarily deported after only cursory hearings.  All of the detainees, most of whom were rounded up without warrants, were denied access to lawyers.

Professor Frankfurter challenged the power of the Attorney General of the United States and his emerging bully, J. Edgar, in court proceedings held in Boston.  Hoover arrived but never came into the courtroom after Palmer was humiliated during questioning.  Instead Hoover quietly fled back to D.C. and later denied that he had indeed run every aspect of the Palmer Raids.

More activism, more commitment to social justice and the fair administration of the law.  Frankfurter, after reviewing the trial transcript, defended Sacco and Vanzetti in an impassioned essay in the Atlantic Monthly.  The prosecution and judge, accused Frankfurter, had played on anti-immigrant sentiments within the jury, and the case violated “all…notions of Anglo-American procedure.”  Then Harvard President A. Lawrence Lowell was appointed by the Massachusetts governor to review the conviction, and found that there was no viable claim of misfeasance nor should there be clemency.  Here’s where academic freedom is essential: Frankfurter remained on the Harvard Law faculty from 1914 through 1939, when he was appointed to the U.S. Supreme Court by President Franklin Delano Roosevelt.

Imagine what his confirmation hearings might look like today!  (Think Goodwin Liu for the Ninth Circuit or Dawn Johnsen for Director of Office of Legal Counsel.)

Every president is entitled, under the constitution, to a very specific legacy.  The power of the president to nominate qualified candidates to the federal judiciary for life, subject, of course, to the advise and consent of the Senate, is one of the most important presidential powers written into the Constitution.  Yes, originalists, written into the Constitution from the very beginning!  The judicial appointments process has bogged down in politics.  Depending on which political party is telling the history, the blame for escalating obstruction gets bandied back and forth.  It seems more prominent, or at least, more effective, during Democratic administrations.

But this much we know: It’s gotten so bad that President Obama has the worst confirmation record of any recent president, not because he is nominating unqualified candidates, but because the confirmation process has been quietly and anonymously hoodwinked by partisan politics.

Just the facts, please.  OK, by May 1 of his fourth year in his first term, Reagan had only a 3% vacancy rate in the federal district and circuit courts.  It looks deceptive to leave unexamined the H.W. Bush figure of 14%; this figure was high because the 1990 Judicial Improvements Act created 85 new positions, and by the close of his first and only term, H.W. Bush had a record 192 confirmations.  Clinton, who like Obama was targeted immediately in a campaign to slow his appointments process, had what was considered an astonishing 7% vacancy rate, whereas George Bush had only a 5% figure.

As of May 1, 2012, Obama has a 9% vacancy rate.  And it isn’t, as the President’s distractors claim, because the White House is slow to nominate.  It’s because the Senate is using every tool available to shut the entire process down: from senators failing to cooperate with the customary courtesy of submitting the names of qualified nominees from a Senator’s home state, whether a Democrat or not; refusing to schedule hearings on pending nominees; avoiding a vote to bring the nominee out of Committee; and preventing a full vote in the Senate.  At each stage of the process, there are opportunities to anonymously and secretly stop the nomination from moving forward.  Ah, wax nostalgic for the days when Senators had to read from telephone books to filibuster.  At least we could hear and see who was responsible.

Judicial vacancies restrict access to the federal courts, make litigation more expensive, and insidiously undermine the credibility of government.  And a confirmation process that prevents the qualified candidates of an elected president’s party from taking office sways the judiciary further to the right despite an election where voters confirmed that civil liberties, clean air, privacy, reproductive rights, social justice, and corporate accountability were important issues they wanted our federal government to maintain and safeguard.

The Alliance for Justice has created a fantastic resource to help educate voters and civic leaders about the state of judicial nominations.  The Judicial Selection Project has a running count of vacancies in the district and circuit courts, along with profiles of all of the current nominees.  It’s a great lesson in the advise & consent function of the Senate, or at least what can go wrong with it.  There is another site, too, hosted by ACS, called JudicialNominations.org, that has similar information.

These sites are worth more than a browse; they’re worthy of checking to see if the federal district or circuit court in your home region is missing a judge or two.  Then it’s worth writing to your Senators and asking the question: why!  (Just a note: The Thurmond Rule is used as an excuse to stop all judicial confirmations so close to an election, but it’s being misused.)  Read about The Myth of the Thurmond Rule.

Take a moment to reflect upon the recent arguments before the U.S. Supreme Court in the healthcare and Arizona immigration cases.  With the Supreme Court hearing fewer cases, we need to improve the quality of justice before federal district and circuit courts, which affect thousands of people now and for years to come.

What law do you want to teach as a professor?