Justice Kennedy Calls for End to Partisanship in Judicial Confirmations

by Nicole Flatow

The “partisan intensity” surrounding the Senate confirmation process of judicial nominees “makes the judiciary look politicized when it is not” and “has to stop,” U.S. Supreme Court Justice Anthony Kennedy said during an address at the 2012 Ninth Circuit Judicial Conference in Maui.

The remarks are the latest in a string of calls to end Senate obstruction of judicial nominees from judges and legal leaders, including Chief Justice John Roberts and Justice Ruth Bader Ginsburg. Justice Kennedy also questioned the functioning of the Senate confirmation process during the 2010 Ninth Circuit conference, saying, “It's important for the public to understand that the excellence of the federal judiciary is at risk.” Two years later, Kennedy is expressing even greater alarm.

“The Constitution requires Senate confirmation,” Kennedy said this week. “The Senate is a political entity and will act in a political way and that’s quite proper. … On the other hand, there is a difference in a political function and a partisan function, and the current climate is one in which highly qualified eminent practitioners of the law simply do not want to subject themselves to this process.”

Senators once again demonstrated the politicization of this process just last month, when they set a new record for obstruction in blocking an up-or-down vote on Tenth Circuit nominee Robert Bacharach. This marked the first time that a judicial nominee reported by the Judiciary Committee with bipartisan support was blocked on the Senate floor. A week later, the Senate recessed without confirming any of the 22 judicial nominees ready for an immediate vote.

The vacancy rate and number of judicial emergencies on the federal courts has remained remarkably high since President Obama took office, and Obama is poised to become the first president in recent history to end his first term with more vacancies than he inherited.

To learn more about the judicial vacancy crisis and follow developments, visit JudicialNominations.org, and click here to get involved with the ACS Judicial Nominations Issue Group.