U.S. Judge: Severe Harm for Courts From Senate Rules Change

A harmful, severe impact on the federal judiciary will result from a Senate rules change eliminating filibusters of most nominees for judgeships (see Gavel Grab), a prominent federal appeals court judge says.

J. Harvie Wilkinson III of the Fourth U.S. Circuit Court of Appeals, who was among finalists considered by President George W. Bush for elevation to the U.S. Supreme Court, gives his opinion in a Washington Post op-ed entitled, “Bipartisan approval lends a sense of balance to the judiciary.”

Wilkinson writes that the rules change eliminated a balancing impact of the prior requirement for bipartisan support in order for a lower-court or appeals court judge to be confirmed: “Given that the ballot box is an imperfect guarantor of the bent or character of judicial appointments, any incentive to place jurists of moderate persuasion on the courts must come from the need to attract Senate support across the aisle. Last week, that need was much diminished.”

He elaborates from personal experience on the way that working with judges appointed by presidents of other parties helps improve judicial decision-making, and how ideologues appointed to the bench are less likely to separate “legal duty and political conviction.” Wilkinson discusses the risks posed by ideologues on the court, then reaches his own conclusion:

“Ideologues pose a unique risk for courts. Judicial institutions run on custom and practice as well as rules, and the public depends on a certain judicial dispassion, which recognizes the difference between disagreement on substance and fraying the very understandings by which we operate. Taking disagreements personally, believing oneself in sole and permanent possession of the truth can, in countless ways, delay dispositions and corrode the quality of justice. This is one thing a bipartisan confirmation process has, for decades, helped to prevent.

“It is far beyond my purview to comment on the impact last week’s events will have on the Senate as an institution, but the impact on the institution of the federal courts will, over time, be severe.”

Among media coverage of the Senate rules change were these pieces: Bloomberg, “Businesses wary as Obama picks get edge in Senate rules;” and Politico, “Presidential nominations are still no slam dunks.”


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