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April 30, 2003
The Honorable George W. Bush
The White House
1600 Pennsylvania Avenue
Washington, DC 20500

Dear Mr. President:

Six months ago you described the judicial nomination and confirmation process as “broken” and declared “we have a duty to repair it.” I could not agree with you more. To fulfill that duty, both the Administration and the Senate must be willing to make concessions for the sake of the Judiciary and the nation. I write to suggest a reform that requires such concessions, but, if adopted, will go a long way toward repairing the damage that has been done.

As matters currently stand, both sides are clearly considering ideology in evaluating candidates for the bench and nominees are being delayed and deferred because of it.

On the front end, while most of the candidates you have sent to the Senate have been mainstream conservatives (and have been swiftly confirmed), a growing number of nominees have records that raise both eyebrows and concerns about their commitment to balance, fairness, and moderation. They may be excellent lawyers, but they have spent their careers advancing agendas that harm – most particularly – women, consumers, workers, civil rights, and the environment.

On the back end, in the face of such extremist nominees, one simply cannot expect the Senate to disregard its constitutional obligation and rubberstamp these extremist nominees. When confronted with nominees’ hostility to basic fairness, we must ask questions, demand answers, and do all we can to stop those who fail to demonstrate the capacity to be even-handed jurists. Thus far, you have declined to take ideology out of the process. That is your right and I respect it, but it means we must continue to stand up against nominees who will bring an activist agenda to the courts.

Thus, we find ourselves at an impasse when it comes to several nominees. In addition, because we have to spend so much time vetting other nominees for whom red flags are raised, the process moves more slowly than any of us would like.

I believe there is a solution to the problems we face.

Both the Administration and the Senate should agree to the creation of nominating commissions in every state, the District of Columbia, and each Circuit Court of Appeals. Every commission will consist of an equal number of Republicans and Democrats, chosen by the President and the opposition party’s Senate leader. Each commission will propose one candidate to fill each vacancy. Barring evidence that any candidate proposed by a Commission is unfit for judicial service, the President will nominate the individual and the Senate will confirm her or him.

To ensure each vacancy is filled rapidly but not hastily, the Commission will have a reasonable period of time within which to propose a nominee, the President will have a short time within which to make the nomination, and the Senate will have the same short period of time within which to confirm him or her.

This proposal is our best hope for filling the bench with judges who are appointed based on merit, not ideology or party affiliation. It is also our best hope for breaking the vicious cycle that the judicial nomination and confirmation process has been stuck in for years.

The solution I offer is similar to one proposed 25-years ago by President Carter, who relied on judicial nominating commissions to generate candidates for circuit court vacancies and it is similar to nominating commissions used by Senators in several states. The biggest differences are that this proposal ensures that all federal judges are appointed by the same process regardless of what party is in power and it guarantees that every single selection is bipartisan.

By giving the President and the Senate equal roles in picking the judge-pickers, both retain some control over the process, but neither gets a stranglehold.

By forcing every selection to be bipartisan, we maximize the prospect of achieving balance and moderation on the bench. Very few extremists on either side will get through and, in the rare instance where one does, he or she likely will be offset by an extremist on the other side.

By mutually agreeing to abide by the choices the commissions make, we take politics and patronage out of the process.

Once this system is in place, Presidents and Senates will be hard-pressed to abandon it. We have a real chance here to put these battles to rest for good.

I promise to work to secure support for this proposal from every Senator on both sides of the aisle. I will also ask every Democratic candidate for the White House to take a vow to support this reform. Your leadership on this matter is essential to achieving this momentous goal. I hope you will agree to work with me to fix our broken system.

I look forward to hearing from you soon.

Sincerely
Charles E. Schumer
United States Senato