At last week’s Judiciary Committee meeting, Senator Whitehouse expressed his dismay that Obama nominee John McConnell had not yet been confirmed as a district judge in Rhode Island. He suggested that once the home-state senators have signed off on a district court nominee the rest of the Senate should automatically join them, opining that “we are on track right now to destroy a tradition of senatorial courtesy to the judgment of the senators of the home state. … I don’t think there is a going back from this.” But the Constitution doesn’t say that the president nominates and home-state senators give their advice and consent, while 98 other Senators merely engage in a pro-forma charade. And that is certainly not what happened to Bush’s nominees, even for district court nominees whom Whitehouse suggested should be given only limited scrutiny.
In fact district judges are profoundly important, and not only because they are often the first in line for higher-level nominations. District judges may have more levels of judicial review to double-check their work, but they still are well-positioned to make serious trouble if they choose to elevate activist principles over the law. Many district court level decisions are reviewed only in the rarest of circumstances and with great discretion, giving these trial-level judges a good deal of power as they manage the progression of a case, deciding its many preliminary motions, and above all creating a factual record. (See, for example, Judge Walker’s attempt to shield his prop-8 decision from review by disguising it as a finding of fact).
Nor did Democrats feel so well-disposed toward district court nominees under President Bush. Numerous nominees who had bipartisan home-state support nonetheless did not receive committee attention or even – like David Novak of Virginia, Richard Honaker of Wyoming, and Gus Puryear of Tennessee – had hearings but never were brought for a floor vote.
Republicans aren’t being petty in expressing doubts about McConnell in particular. His extreme anti-business legal theories, advanced as a lead paint plaintiffs’s lawyer, would have held companies liable for damages regardless of whether their paint was involved in any injury. This led the Chamber of Commerce to make McConnell the first district court nominee they have ever opposed. Even the knee-jerk liberals at the ABA weren’t able to give McConnell a solid qualified rating, splitting between qualified and unqualified. That calls into question the president’s insistence that it was McConnell’s qualifications and not his hundreds of thousands of dollars in Democratic campaign donations that led to his nomination.
Senators have a duty to ensure that candidates for a lifetime appointment to the federal bench are qualified and have an acceptable judicial philosophy. To fast-track nominees like John McConnell would be to abandon that duty.