Ohio's Nominees to Federal Court Deserve Confirmation

By David J. Owsiany, posted December 1, 2002

The recent debate over President Bush’s nomination of Charles Pickering to the Fifth Circuit Court of Appeals brings to light the broader problem of the growing number of judicial vacancies on federal courts generally and especially on the Sixth Circuit Court of Appeals which covers Ohio, Michigan, Kentucky, and Tennessee. The Federal court system is currently operating with more than 10 percent of its judgeships unfilled.  As a result of the 95 vacancies on the federal bench, backlogged cases – both criminal and civil – are piling up.

The Sixth Circuit, which is one of 13 federal appellate courts, is the most depleted court in the country.  It normally has 16 active judges but currently only has eight.  The importance of these appellate courts cannot be overstated.  In most federal cases, they are the last chance for litigants because only a handful of cases are accepted for appeal to the U.S. Supreme Court. 

Bush has nominated six individuals to fill vacancies on the Sixth Circuit, including Ohio Supreme Court Justice Deborah Cook and Columbus attorney Jeff Sutton, both of whom were nominated last May.  In order to join the federal bench, nominees must be confirmed by the U.S. Senate.  None of the Sixth Circuit nominees have even had a hearing in the Senate Judiciary Committee.   Their situation is not unique.  Of the 90 candidates Bush has nominated to fill judicial vacancies since taking office, the Senate has only confirmed 39.

Cook’s record on the state’s highest court is impressive.  In several cases, including regarding tort reform and school funding, the Ohio Supreme Court has usurped policymaking authority from the legislature in violation of the constitutional doctrine of separation of powers.  In a series of powerful dissenting opinions, Cook has consistently sought to uphold the principle that judges perform the function of case adjudication, not policymaking.

She has refused to substitute her personal policy preferences for that of the General Assembly.  Even the American Bar Association, which has been justly criticized for being harder on conservative judges than liberals, gave Cook a unanimous “qualified” rating following her nomination to the Sixth Circuit.

Sutton’s qualifications are equally impressive.  He graduated first in his class from the Ohio State University College of Law and was a law clerk for U.S. Supreme Court Justices Antonin Scalia and Lewis Powell.  Sutton served as Solicitor of the State of Ohio from 1995 to 1998 and has argued nine cases before the U.S. Supreme Court. Sutton is a constitutional law expert who recognizes that the federal government’s power is limited and that states retain significant authority under the Constitution.  Some liberal special interest groups, which seek to achieve their political agenda through an activist federal judiciary, oppose Sutton.  Nonetheless, the American Bar Association gave Sutton a “qualified/well qualified” rating.

One of the roadblocks in the confirmation process is that Michigan’s two Democratic Senators, Carl Levin and Debbie Stabenow, have demanded the Judiciary Committee not confirm nominees to the Sixth Circuit until Bush re-nominates two unsuccessful Clinton nominees from Michigan.  Levin and Stabenow have also suggested that the power to make judicial appointments be given to a bipartisan commission.

In recent weeks, Senate Judiciary Committee member, Diane Feinstein (D-California), stated that she will only vote for those prospective judges who share her ideology.  These senators completely misunderstand their constitutional role in the judicial selection process.  The U.S. Constitution gives the president the authority to appoint members of the federal judiciary with the “advice and consent” of the Senate. 

Alexander Hamilton wrote more than two hundred years ago that under the Constitution it is “not very probable” that a president’s nominee will often be overruled.  The requirement of advice and consent from the Senate was intended “to prevent the appointment of unfit characters” and guard against the president exercising favoritism to his own state or on the basis of “family connection” or “personal attachment.”

Nothing in the Constitution gives any senator the authority to demand the president nominate specific individuals, to transfer appointment authority to an unaccountable, unelected commission, or to apply some ideological litmus test.  In the last two decades, both Republicans and Democrats have occasionally engaged in excessive partisanship over particular judicial nominees.  However, the current situation is unprecedented. 

The Senate’s reluctance to confirm judicial nominees, despite their unquestioned qualifications, is creating a crisis in the federal judiciary.  In fact, the Judicial Conference of the United States has classified 34 of the vacancies as “judicial emergencies,” and Chief Justice William Rehnquist has warned the country about “the alarming number of judicial vacancies.” The Senate needs to act swiftly to remedy this situation.  A good first step would be to confirm Sutton and Cook to positions on the Sixth Circuit Court of Appeals.

David J. Owsiany is the senior fellow in legal studies for the Buckeye Institute.