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86 Judicature 34 (2002-2003)
Concluding Remarks

handle is hein.journals/judica86 and id is 34 raw text is: Concluding remarks We may not be able to get politics out of federal judicial selection, but we can insist on selecting judges for whom politics won't be the sole or driving force. By James L. Huffman The issue of federal judicial se- lection has been of particular in terest on the West Coast be- cause of the circumstances of the Ninth Circuit. The Ninth Circuit covers an enormous area geographi- cally, all the way from Arizona to Alaska and Hawaii. It is a tremen- dously overburdened court. Each judge sits on, roughly, 450 panels a year, which means that each judge is responsible on average for 150 dis- positions. That caseload has tripled since 1988. It is a circuit which is, from the point of view of conserva- tives, out of balance because it has 20 Democratic appointees and seven Republican appointees. It is also a circuit, partly because of geography and partly because of the politics within that geography, that is split in a political sense between what one might describe as the Northwest, JAMES L. HUFFMAN is Dean and Erskine Wood, Sr. Professor at Lewis and Clark Law School. in which I think Arizona wants to be included, and California. There is, as most of you know, a pending issue re- lating to the split of that circuit. Maybe the last and most significant factor is the frequency with which the Ninth Circuit has been reversed by the U.S. Supreme Court. I think it was three years ago that something like 31 of 32 Ninth Circuit decisions were overturned. The record has not changed too much since then. Does ideology play a role in the selection ofjudges? Well, I think it clearly does. One has to conclude from today's discussions that politics is important. There is also, I think, agreement from today's discussions that the pro- cess has changed, if perhaps not in becoming more political, certainly in the time that it takes for the process to work its way. A good friend of mine, Diarmuid O'Scannlain, who sits on the Ninth Circuit Court of Appeals, told me a few weeks ago that his confirmation process in 1988 from appointment to taking the oath of office was about eight weeks. That may have been a little fast for the time, but I do not think that framework is within the conception of modern humans. Judge Newman suggested this morning that the activism/restraint labels that are often used in these debates are too simplistic. I would certainly agree with that. I think one person's activism is another person's restraint; it just depends on which side of the political fence you are on. Judge Newman also suggested that we might cool the rhetoric. That seems like a good suggestion to me. About a month ago, Al Hunt had a piece in the Wall Street Journal that was in effect encouraging the Demo- crats to continue to resist the Bush appointees on the theory that this is a political business. Hunt's argument was that the Democrats should not succumb to some sense that they have to rise above it all, but that poli- tics was what it was all about and they should continue to proceed as they had. I think the first panel today un- derscores that. You might say we should rise above politics, but I am not sure that politics is something that you rise above. I think it is a way that we have chosen to accomplish a lot of things in this country. Suggesting that we need to rise above it suggests that there is something wrong with poli- tics; it is simply a way of deciding public matters. Walter Dellinger suggested that we either approve everyone on the as- sumption that the president has ulti- mate and final authority to make these decisions, or that we take into account ideology and politics, but take a vote and be done with it- bring these people up for hearings and consideration. Our history sug- gests, and I would think most of the commentary today suggests, that is not the way the system works. The United States Senate is a place of mysterious workings to most of us who have not been participants in it, which gives some people more power than others on some issues and not on other issues. I suspect that will al- ways remain the case. I think that the appeal for making sure everyone gets This article is an edited version of an address presented on May 17, 2002 at the AJS symposium, Selecting Federal Court of Appeals and District Court Judges: The Role and Responsibilities of the Executive and Legislative Branches. 34 Judicature Volume 86, Number 1 July-August 2002

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