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Consultation is the oil that eases executive-legislative tensions and often leads to results that could not otherwise be attained. Nowhere is it more important than in connection with nominations for federal judgeships. Moreover, in that situation it is the president’s constitutional duty; he must act “by and with the advice. . . of the Senate.” It is a sad commentary on our government today that the senators who recently negotiated the compromise on the handling of judicial nominations felt it necessary to urge the president to comply with this obligation. The importance of executive-legislative consultation was brought home to me during my service in the Department of Justice under then-Attorney General Griffin Bell. As an assistant attorney general, I headed the Office for Improvements in the Administration of Justice, which Attorney General Bell created to identify problems in the nation’s justice systems and to develop measures to address those problems. Most of those measures required action by Congress. We could not effectuate them alone. Attorney General Bell and I did not see court improvement as a “Democratic” program, although we were part of a Democratic administration. We thought the courts were too important for partisanship. As a practical matter, it was obvious that we needed to work closely with members of Congress in both parties if we hoped to obtain enactment of meaningful improvements. I spent as much time talking with Republicans as I did with Democrats. The process was not complicated or difficult. It was simply a matter of sitting down and talking with them in good faith to hear their reactions to our ideas and learn of their proposals on the same subject. We also sought reactions from judges and lawyers and interested groups. Our objective was to identify the proposals likely to garner enough support from both sides of the aisle and from the relevant constituencies to make enactment a realistic possibility and avoid dysfunctional controversy. This nonpartisan consultation worked effectively to secure passage of several significant bills concerning the courts. They included bills to establish the U.S. Court of Appeals for the Federal Circuit, to enlarge the jurisdiction of federal magistrates, to reorganize the circuit judicial councils, and to fix terms of chief judges. On these, and on other measures, we were able to achieve a considerable measure of bipartisan consensus before the bills were introduced. The results probably would have been quite different if we had sent up bills to Congress with no advance consultation. GENUINE CONSULTATION Although my experience did not involve judicial nominations, the consultation process in that connection should not be essentially different. Proposals to change the courts’ jurisdiction and procedure can be as controversial as judicial nominations. Indeed, with judicial nominations, consultation is much simpler. The House of Representatives is not involved at all, only a few key senators. Moreover, there is no bill to discuss with numerous provisions, any one of which might spark disagreement. The focus is quite specific — identifying one person to fill one seat on a court. Under the constitutional design, the initiative rests with the president and his agents. Unless they have the will — indeed, desire — to seek senatorial advice before sending up a nomination, consultation is unlikely to occur. Genuine consultation, and not just a pretense, requires that the executive officials put before the senators the names of those the president is considering for appointment. If the objective is, as it should be, to obtain Senate confirmation without an unpleasant, partisan fight, negotiation and consultation provide the surest means to that end. Compromise may be necessary, as I found out. One does not always get one’s heart’s desire, but that is inescapable in a democracy. Bipartisan support for a nominee for a judgeship is especially important because judges are different from all other government officials. Appointees to executive positions or to regulatory agencies may reasonably be expected to carry out the policies of the incumbent president. But not so with judges. They cannot properly be expected to be agents of a particular administration. Their role, unlike that of any other official, is to be independent, detached from political forces and the political process, with a commitment only to the statutes, the Constitution, and case law making up the body of our governing jurisprudence. APPEARING NONPARTISAN The public appearance of such commitment is as important as its reality. For a judge to be thought of as a Democratic judge or a Republican judge is detrimental to the rule of law. Although such a partisan aura cannot be completely dispelled in many instances, given political realities, that unfortunate image would be exacerbated if a judge were confirmed by a straight party-line vote with no support from the opposing party. On the other hand, confirmation with a significant number of votes from senators not of the president’s party would strengthen the image of the courts as fair and objective adjudicators. Support from across the aisle affords at least some measure of assurance that the judge has a relatively broad range of acceptance among the American people. Such judges are more likely to enhance public respect for the courts and heighten acceptance of their decisions than are judges who come to the bench with only partisan backing. Confirmations with bipartisan backing are most likely to be achieved by genuine consultation ahead of a nomination. Consensus may not always be possible, but its failure should not be for lack of good-faith effort. Consultation over judicial nominations is so commonsensical and so obviously in the public interest, as well as constitutionally mandated, that it is difficult to understand why it is not pursued more vigorously by the current administration. Daniel J. Meador is a professor emeritus at the University of Virginia School of Law. In addition to the Justice Department service described, he served as executive director of the Commission on Structural Alternatives for the Federal Courts of Appeals, chaired by the late Justice Byron White.

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