On the Politicization of Judicial Nominations

BY SARAH ISGUR

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Questions surrounding the contentiousness and efficacy of the nominating process loom large at Harvard Law School. At an event sponsored by the Federalist Society the Wednesday before flyout week, Judge Timothy Tymkovich of the U.S. Court of Appeals for the Tenth Circuit spoke to a crowd of 65 students on his view of the politicization of the judicial nomination process.

After waiting just under two years for his own confirmation hearing in 2003, Judge Tymkovich spoke on the modern history of the process and the consequences that such changes have provoked. Tymkovich noted that the average length between nomination and confirmation for a judge during the Reagan White House was 32 days. Just ten years later that number had risen to 258 in the Clinton years, and today it stands somewhere above 300 days. Judge Tymkovich cited the Bork nomination as the turning point for this dramatic rise, resulting in an increase in participation and money spent by interest groups — just over $2.5 million in 2005.

Tymkovich acknowledged that a great deal of this new scrutiny comes from a desire for more accountability from federal judges. However, he also argued that this same scrutiny harms the very judicial independence that the process was intended to create and can be “brutal on nominees and their families.” Although recognizing the use of nominating committees in many state court systems, he felt that committees only shifted the politicization to the committee appointments themselves.

When asked how all of this factored into the Miers nomination, Tymkovich invoked the same answer that Lincoln gave when asked whether he would appoint a chief justice ‘safe’ on slavery issues: “We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it.”

[Note: Tymkovich addressed students prior to Miers’ rescission of her nomination.]

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