Last week, ten prominent law professors and I wrote the following letter to President Obama in order to convey our concerns about the way in which the Administration has gone about nominating federal judges. The White House's response to our letter was to acknowledge the issue and to assure us that it had already begun taking steps to address our concerns. It will be interesting to see over the next several months whether the Administration in fact makes this issue a central priority of its domestic agenda. A lot depends on it.
February 24, 2010
President Barack Obama
The White House
Washington, D.C.
Dear Mr. President:
When James Madison first proposed the Bill of Rights, he counseled that the success of our constitutional system would depend in no small part upon the courage and wisdom of our federal judges, who would serve as the "guardians" of our liberties and as "an impenetrable bulwark" against every "encroachment" upon our most cherished freedoms.
After decades of Republican appointments of conservative federal judges (at the time of your election more than 60 percent of all federal judges and seven of the nine justices of the Supreme Court had been appointed by Republican presidents), you now have an historic opportunity to reestablish our nation's commitment to the core values of our Constitution by nominating judges who will uphold the fundamental principles of individual dignity, equality, due process, personal liberty, privacy, and separation of powers. We urge you to seize this opportunity.
We write out of a growing concern that your Administration must act with far more energy and dispatch in the vitally important task of nominating and confirming federal judges. We recognize that partisan obstructionism in the Senate has made this task increasingly difficult, but the successful management of the confirmation process is critical to the nation and, ultimately, is the White House's responsibility.
Since taking office, you have nominated only 43 federal judges -- despite the fact that there are currently more than 100 judicial vacancies and 31 judicial "emergencies" due to unfilled positions. By contrast, at this point in his presidency, President George W. Bush had nominated 89 judges to the federal bench, and by the time he left office he had appointed fully 40 percent of all federal judges. In so doing, he transformed the federal judiciary in a sharply conservative direction. This transformation was a central priority of his domestic agenda.
We urge you to make the federal judiciary just as central a priority of your Administration. This is important not only for the Supreme Court, but also for the lower federal courts, which make thousands of decisions each year on issues as wide-ranging as freedom from discrimination, due process, religious and expressive liberty, crime and punishment, the environment, immigration, workplace safety, privacy, and access to the political process.
Our nation needs a new generation of jurists who will give voice to the understanding that our federal courts are indispensable guardians of our most fundamental liberties. We therefore urge you to redouble your effort to appoint exceptional judges possessed of keen intellect, fierce independence, bold judicial leadership, and deep respect for the rule of law and the most basic values of our Constitution. By so doing, you will restore much-needed balance to the federal judiciary, leave an important legacy for the future, and fulfill your responsibility to "preserve, protect and defend the Constitution of the United States."
Sincerely yours,
Bruce A. Ackerman
Sterling Professor of Law and Political Science
Yale University
Lee C. Bollinger
President
Columbia University
Ronald M. Dworkin
Frank Henry Sommer Professor of Law
New York University
Randall L. Kennedy
Michael R. Klein Professor of Law
Harvard University
Sanford V. Levinson
W. St. John Garwood and W. St. John Garwood, Jr. Centennial Professor
The University of Texas
Frank I. Michelman
Robert Walmsley University Professor
Harvard University
Robert M. O'Neil
University Professor Emeritus
The University of Virginia
Cruz Reynoso
Boochever and Bird Professor of Law
University of California Davis
Geoffrey R. Stone
Edward H. Levi Distinguished Service Professor of Law
The University of Chicago
Kathleen M. Sullivan
Stanley Morrison Professor of Law
Stanford University
Kenji Yoshino
Chief Justice Earl Warren Professor of Constitutional Law
New York University
By now, we should all be aware that the actions of the Goldman Sachs Administration are consistent a policy of not making a serious effort to overturn the Bush Administration policies.
It should not be surprising.
It is, however, absolutely amazing that this is being collectively ignored by the MSM, defended by Bush supporters, and excused by Obama apologists.
The reason I used extraordinary is due to the fact that the Republicans apparently have decided that unless a nominee is perfect in all ways or right wing, they will block the person. It is one thing to have a Geithner who screwed up his taxes when he should have known better to having someone blocked because they "are okay with employees unionizing" when the position has little to do with it.
Also, good jurists are non-confrontational. Respectful, studious and thorough is what you want, not confrontational. Confrontational works in politics, it does not work on the bench.
How is any of this responsive to the observation that it is amazing that Obama's inaction with respect to even nominating judges is being collectively (1) ignored by the MSM, (2) defended by Bush supporters, and (3) excused by Obama apologists?
It appears from your writing that you are not someone who is employed by the MSM and ignoring the issue.
From your writing, it also doesn't seem that you are a Bush supporter, although I could be mistaken.
If you are an Obama apoligist, that might explain the reason for your action of posting a response, but it doesn't explain what you are trying to convey.
This, of course, may be due to the fact that you are trying to convey origional thoughts rather than the usual talking points put together by Bush supporters and Obama apologists.
In any event, you claim that "good jurists are non-confrontational." Is that your criteria? Is that what Holmes might say? Or Brandeis? Or Douglas, or Black, or any of the others. Name one good non-confrontational judge.
To do less truly shows his ""ack of action and faithfulness"" to the citizens of your country.
Because when Bush did it it was heroic governance, if Obama does it it will be a Stalinist takeover.
The bloviations and fabrications of the right wing punditry is staggering!
And their slavish audience actually believes the lie, rather than facts.....
Seriously, there is nothing OUR President can do to please you people!
Reality has left the Republican building.
In order to MAKE Obama fail - they refuse to appoint his nominees and refuse to pass his Bills - all 290 of them.
THANK YOU TO THE OBSTRUCTIONISTS - PAINS IN THE - - - -
He could either lead, follow, or get out of the way.
Truly, Madison was right. Please keep the information and articles coming on this.
The Supreme Court is now in fact the Federalist Society Court...
Which way will Obama swing will he install more Fed Soc...?
I no longer trust this guy or take him seriously when it comes to the rule of law and or especially Equal Justice under the Law...he and Holder in that regard are little better than Bush Gonzales...
Also, BREAKING NEWS:
Reid's Office: Bunning Holding All Obama Nominees
Source: TPM
March 2, 2010, 6:07PM
Sen. Jim Bunning (R-KY), who has become a one-man filibuster of a bill to extend unemployment benefits, apparently placed a hold on all presidential nominees last week.
Senate Majority Leader Harry Reid's office confirms to TPMDC that Bunning has placed the holds.
"It turns out that not only has he been blocking the unemployment insurance bill, he has also been blocking the confirmation of nominees since last week as well," said Reid spokesman Jim Manley.
I have two friends who would make excellent jurists and I doubt they would want to be vetted.
Any honest attorney with principles similar to those of Holmes, Brandeis, Douglas, Black, and others.
You say that you have friends who wouldn't want to be vetted but that they probably would make good jurists.
No, they wouldn't. People who are too shy to stand up for their principles, and people who are too shy to be honest or confrontational, do not make good judges.