One of President Obama’s most enduring legacies will be the nominees he selects for lifetime seats on trial courts, the circuit courts of appeal that have the final say in 99 percent of cases, and the Supreme Court.
There are 44 current and 21 announced future federal court vacancies. Retirements, deaths and likely passage of a bill to create badly needed new judgeships will result in many more nominations over the next four years.
The records of potential and pending judicial nominees on constitutional interpretation are a vital consideration, but far from the only one. Lifetime judges must also be competent, fair and independent, and must fairly interpret and apply the statutes, treaties, and judge-made “common law” that are at issue in the vast majority of cases.
In addition, access to court is essential. It includes both constitutional and non-constitutional aspects of standing to sue, and statutory interpretation issues such as the definition of agency action that can be challenged.
As I described in a prior ACS guest blog posting, my review of the records of President Bush’s judicial nominees shows how important it is to ensure that judges do not fall short in one or more respects. These analyses bear out my prior experiences with judges who fail to take certain issues and categories of cases seriously, twist the facts and ignore binding legal precedents, violate their own court rules, are hostile to public interest group access to courts, and unjustifiably value corporate interests above those of ordinary Americans and the environment.