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As mid-term congressional elections in a second-term presidency approach, so just as surely does the window for meaningful consideration of federal judicial appointees close. Our airwaves and mailboxes will soon be filled with half-promises and dire warnings about what one party or the other will do to rescue or raze federal courthouses across the land. Parts of this passionate banter are heartening: a recognition of the vibrancy and relevance of our judiciary. Yet it is fair to ask whether this bare-knuckled, political slugfest over federal judge selection has now overtaken the interdependence historically intended by presidential appointment and Senate confirmation. In 2005, the Senate considered whether a “nuclear option” to short-circuit Senate rules was an appropriate response to partisan divide over confirming federal judges. A lawmaker enmeshed in the dispute told it plainly, but anonymously, in a National Journal political update e-mail: “People don’t care about the process,” he said. “Do what you need to do to get the desired outcome.” Like people who tell you an issue isn’t about money, when it usually is, this is a clear sign that the process is exactly what needs attention. It’s important that this discussion occur because forces have long since gathered to encroach upon the independence of our federal courts and judges. Through the last decade, a consistent stream of constitutional amendments has been introduced to curb the autonomy of federal judges. Several proposed amendments targeted life tenure, proposing that reconfirmation of federal judges be required every six, 10 or 12 years. Others advocated judicial terms of office, or a specific mechanism to allow the Supreme Court to remove federal judges from office. Earlier this year, the stakes were raised even further by proposed legislation to create an inspector general within the federal judiciary, ostensibly targeted at waste, fraud, abuse and judicial misconduct. Justice Ruth Bader Ginsburg called the proposal a “really scary idea.” Moreover, we are now regularly treated to a rhetoric of “accountability” and retribution against our federal judges that has taken on even more troubling features: The U.S. Marshals Service reported this summer that threats against federal judges and court employees in 2005 increased 63% as compared with 2003. Set up a bipartisan commission Amending the U.S. Constitution is one of the most serious and exacting of the legislature’s, and the public’s, duties. Yet, guided by George Washington’s adage that the Constitution was an imperfect document made better by the opportunity to amend it, perhaps it is time to address the federal judiciary’s fate. However, instead of restrictive efforts to curtail our judges or make them more responsive to tides of public opinion, what may be required is a breathtaking act of radical nonpartisanship to ensure their vitality and independence. We could foster a policy discussion about whether a commission on judicial selection (CJS), guided by a bipartisan framework that facilitates consensus, would better serve the administration of justice. The balance of design the framers employed in setting up the government’s branches has afforded us trial and appellate courts that are, quite literally, a model for the world. But of all our intragovernmental checks and balances, the ability of a president to place a perceived political imprint on the federal judiciary may well be the least rational, considered in the context of our era. A number of states have successfully adopted judicial selection models that use non- or bipartisan commissions to fill judicial vacancies. The most examined of these is the “Missouri Plan,” adopted or augmented in at least 20 states, in which a commission solicits and interviews candidates and recommends a short list of them to the governor. Judges are then typically subjected to retention elections. Configuration options for a CJS would, of course, abound. One option is to operate it as an eight-member body with staggered terms that must bridge partisanship to assemble six votes to take formal action. It could leave highly charged Supreme Court vacancies to the current mechanism, in part as recognition of the clamor which change brings but also as acknowledgment of where so much of our law is actually made. Otherwise, the mandate for the commission would be to fill all district and circuit court vacancies subject to majority assent by the Senate. How the CJS is initially populated would be key to its public, and political, acceptance. The inaugural commission could include two retired federal judges, nominated from within the Judicial Conference, one each sourced to Democratic and Republican administrations; two appointments by the solicitor generals from the most recent Democratic and Republican administrations; two tenured law professors, nominated by the Senate majority and minority leaders; and two at-large appointments, one from the sitting president and one from the highest ranking House member of the opposition party. Elected officials would still submit candidates from their jurisdictions for consideration, and bar groups would still vet them, but the suggestion to voters that judicial seats swing in the balance of elections could be diminished. Unhappiness with this type of system would be bipartisan. Attacking a divide that grows ever more bitter, even with a bridge formed of shared contempt for the remedy, is at least a start. At our last juncture of judicial crisis, the “Gang of 14″ emerged from the Senate’s aisles to draw their chamber back from the “nuclear” brink. Now, several of those senators find themselves under attack from their partisan bases for acts of traitorous conciliation. One “gang” member, Senator Mike DeWine, R-Ohio, has resorted to offering this explanation to his base: “Look, we got our judges . . . .We won.” Our collective experience as a country of Republicans, Democrats and independents tells us that this kind of “victory” does not preserve our judiciary. It corrodes it. Turning their backs on the “prize” of judgeships would show the public that our elected officials, and their parties and partisans, understand. Brad Risinger is a partner in the Raleigh, N.C., office of Smith Moore.

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