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Judicial Politics

A Commentary By Susan Estrich

Wednesday, February 16, 2011

There is a crisis in America's federal courts that has absolutely nothing to do with politics, although that is its cause.

The figures are familiar: One out of every nine seats on the federal bench is vacant. Half of the vacancies are in districts with multiple vacancies that have literally declared "judicial emergencies" because they have more cases (many of them criminal and thus subject to speedy trial requirements) than they can handle.

Only 65 of President Obama's judicial nominees have been confirmed. In the past six weeks, one federal judge a week has retired, further increasing the number of vacancies.

Chief Justice John Roberts has warned of the crisis. White House counsel Bob Bauer has warned of the crisis. The Senate even listened enough to actually confirm two judges on Thursday -- easy confirmations of well-qualified candidates, both of whom, when they finally bothered to put them up for a vote, were confirmed unanimously.

Roberts' previous seat has been vacant for five-and-a-half years.

The problem is not that well-qualified people have stopped applying for federal judgeships, though it is hard to believe that the average one-year wait for confirmation doesn't deter some folks. The problem is that well-qualified people are getting caught in political battles that have nothing to do with them, or with the judiciary for that matter.

There is a myth that seems to animate Senate review of judges: that every day on the federal bench you decide Roe v. Wade, that every day you decide whether gay marriage is lawful, whether Arizona's immigration law is unconstitutional or whether the president's health care bill gets thrown out.

It ain't so. Most judges don't decide a single such case in a lifetime. Even if they do, unless you're on the Supreme Court, it's just back-story.

What federal judges do, day in and day out, has much less to do with politics than with knowledge, judgment, management and discipline.

Managing a criminal or civil docket is a major enterprise. Federal judges do it with the help of a couple of kids right out of law school and a few hardworking clerks. Juggling dozens of cases, motions calendars and juries; ensuring that trial dates don't slip and speedy trial rights aren't compromised; making one decision after another, often with little time for reflection, that determine what evidence comes in, what arguments can be made, who gets bail, what charges will stand, what claims get dismissed, whether proper procedures were followed, what damages are justified, whether a temporary restraining order should issue -- that's called Monday.

Good judges do these things well, and it almost never has anything to do with politics. Get together with lawyers to discuss judges, and they don't talk about who appointed them or how they answered the Roe question in confirmation hearings. It's about how they run their calendar, whether they are prepared for and engaged in oral arguments, and how long it takes for a case to get to trial.

We have grown used to playing politics with nominees to the Supreme Court, to the point that having deep convictions is seen as disqualifying and confirmation hearings have become a charade. There are occasions when a high-profile ideologue, left or right, is appointed to an appellate court, and those battles are probably bound to play out again and again.

But most federal judges aren't there to do politics. And they shouldn't be demeaned by the political process -- or forced to wait a year or longer because of it -- when what they are trying to do is serve this country.

COPYRIGHT 2011 CREATORS.COM

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