The Brookings Institution

  • January 30, 2013
    Guest Post

    by Russell Wheeler, Visiting Fellow, The Brookings Institution

    My recent ACS Issues Brief was not overly optimistic about the likely efficacy of various proposals to speed the nomination and confirmation of district and circuit judges in President Obama’s second term. Any significant changes, for that matter, stand little chance of adoption in the midst of contentious confirmation battles.

    A modest change to Senate procedures, though, adopted after the Brief was prepared, may shorten the time between district nominees’ Judiciary Committee hearings and any floor votes to confirm the nominations.

    Judicial nomination processing times in Obama’s first term increased substantially over those in the first terms of Presidents Clinton and Bush -- 223 days on average from nomination to confirmation for district judges, compared to 93 days for Clinton’s first term district appointees and 155 for Bush’s. And unlike in the Clinton and Bush first terms, the bulk of the time that Obama’s appointees waited came after their Judiciary Committee hearings. Once Clinton’s appointees got hearings, they waited only 30 days for their confirmation votes. Bush’s district appointees waited 54 days. Obama’s first term district appointees, by contrast, waited an average of 142 days.

    Near-eight month average wait times from nomination to confirmation have several deleterious effects, especially when combined with the over a year wait time on average between the vacancy (or its announcement) and the nomination. For one thing, obviously, a vacant judgeship is not a productive judgeship. Moreover the time potential nominees wait as senators and the White House jostle over whom to nominate, and the time actual nominees spend waiting for hearings and floor votes, can put their professional lives in limbo. Potential clients will be wary of signing on with a lawyer who’s being talked about for a judgeship, much less one whose nomination is before the Senate. Even state judges, term-limited federal judges, and government and public defender lawyers may be reluctant to become the object of extended delay and public speculation. In short, the nomination and confirmation process discourages some quality potential judges from putting themselves forward as candidates and thus serves itself as a barrier to filling vacancies.

  • December 20, 2011

    by Jeremy Leaming

    The dominance of a conservative legal orthodoxy might not be as solid as portrayed by several panelists at a recent Brookings Institution event about the “Conservative Legal Movement and the Future of Liberal Jurisprudence.”

    Pamela S. Karlan, a distinguished law professor at Stanford Law School, explained why many perceive the conservative legal movement as dominating the narrative of the Constitution, while William E. Forbath, a distinguished law professor and professor of history at the University of Texas, focused on sharpening a liberal response to the conservatives’ narrative of the Constitution primarily meant to protect individual interests, such as private property. Forbath also examined the Constitution’s promise of economic security and equality.

    Karlan (pictured), an ACS Board member, took exception with the overall tilt of the Brookings event that conservative legal activists have outmaneuvered liberals in advancing legal theories. Karlan, however, also leveled criticism of liberals who are cowed into silence or into dubbing themselves progressives.

    But first Karlan noted the circumstances, with which conservatives have seized upon to advance their legal precepts.

    “Today it is tempting to tell a story about the rise of the conservative legal movement as the inevitable consequence of a combination of strong ideas pressed by charismatic public figures, backed by tremendous resources,” Karlan said. “To be sure, conservatives have very skillfully played the hand that they held. But contingency has played a major role too.

    “If you go to the Brookings’ website to look for its description of the conference today, you’ll see the description that says ‘the conservative legal movement has shown remarkable success at defining the terms of the debate over jurisprudence, while various visions of liberal theories of law that confront conservative orthodoxy have struggled to gain currency in the political sphere. Conservative legal theorists have coalesced around a relatively compact and politically effective set of ideas while their liberal critics have offered a diverse series of responses.”

    Continuing, Karlan said, “Now if some other public policy organization were to have held a conference in say 1968, it could have taken the same paragraph, swapped the words ‘conservative’ and ‘liberal’ and held a parallel discussion to the one were going to be holding today.”

    Conservatives Karlan maintained, “Have been as lucky as they’ve been smart.” A few tweaks to history, she said, and the landscape would likely look really different.

  • July 11, 2011

    The Brookings Institution on July 18 will host a debate over competing visions between progressives on how to explain their understanding of the Constitution and constitutional interpretation.

    Distinguished University of Chicago Law School Professor Geoffrey R. Stone and Doug Kendall, founder and president of the Constitutional Accountability Center will debate their differing approaches, which they recently detailed in articles for Democracy: A Journal of Ideas.

    In their opening Democracy article, “The Framers’ Constitution,” Stone (pictured) and William Marshall, a former ACS Board member and a distinguished law professor at the University of North Carolina,  contend that the Constitution’s framers “understood that they were entrusting to the future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, ‘we must never forget it is a Constitution we are expounding … intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.’” (During the 2011 ACS National Convention, Stone provided a speech exploring some of his thoughts on framing the debate over constitutional interpretation. Video of his speech is available here.)

    Kendall and Jim Ryan, a distinguished law professor at the University of Virginia School of Law, explain in their opening article, “The Case for New Textualism,” that progressives “are losing the fight over the courts and the Constitution because conservatives have maneuvered us into running from, rather than embracing, the text of and history of the Constitution.” The two say, “New textualists look carefully at history – both the enactment history of particular provisions and the broader historical events that produced the need for the text – to understand the meaning of the Constitution’s text.” Kendall and Ryan offer a response to the Stone and Marshall here.

    In their response to the new textulism argument, Stone and Marshall write that in contrast they believe “the better way for progressives to articulate a genuinely principled theory of constitutionalism and win an informed public debate is to embrace the jurisprudence of John Marshall rather than the methodology of Antonin Scalia. We believe that our understanding of the Framers’ Constitution presents a more honest account of how constitutional interpretation operates in the real world, and is truer to the Framers’ understanding than a mechanical invocation of either originalism or textualism.”

    The Brookings Institution debate will be moderated by Senior Fellows E.J. Dionne Jr. and Benjamin Wittes. Visit here for more information, including registration, about the debate.