Viewpoint

Broken confirmation process hurts our state

The bruising confirmation fight of Supreme Court nominee Robert H. Bork presaged the bitter fights common today.
The bruising confirmation fight of Supreme Court nominee Robert H. Bork presaged the bitter fights common today. AP

In December of 1995, the White House called with news that the president submitted my name for Senate confirmation as a judge on the U.S. Court of Appeals for the Fourth Circuit. It was the stuff of dreams.

Months of careful vetting preceded this call. The White House, the Senate Judiciary Committee, the FBI and the American Bar Association sent overlapping questionnaires requiring exhaustive documents. Former law clerks spent endless nights culling court files. FBI agents interviewed classmates, friends, colleagues and professors. They tracked down my college adviser, Anne Queen. I had to calm everyone after she told agents to “get off my damn land.”

Bipartisan letters flowed into the White House and congressional offices. Then-North Carolina Gov. Jim Hunt signed off on my nomination because there was no Democratic senator. The American Bar Association gave me the highest possible rating.

Naively, I assumed it would work out. I did not realize, post-Bork, that judicial confirmation had become a blood sport. In my case, senators smugly argued that additional judges were unnecessary. From 1979 to 1989, home state senators could not block a circuit nominee. Now they could.

I twisted in the wind for two years. Then-University of North Carolina system President Bill Friday went to Washington to beg Sen. Jesse Helms to relent. As all nominations not voted on do, mine died when the Senate adjourned.

My story is not unique and both parties are complicit. North Carolina lacked full representation on the court for more than a decade, and a whole generation was denied the chance to serve at the federal courts’ highest levels. No wonder North Carolina has not had a U.S. Supreme Court justice in 200 years.

The confirmation process is badly out of whack. Like my father’s ancient tractor that occasionally cranks up and lurches forward, it does produce some results. Both North Carolina senators at the time of their confirmation supported the three nominees now representing our state on the court of appeals. Yet Raleigh’s district court seat remains vacant. Men and women with merit and integrity who deserve to be fairly considered instead are reduced to pawns.

Is this how the Founding Fathers envisioned the confirmation process? The framers, such as Alexander Hamilton, appear not to have contemplated that the Senate could neuter the two other government branches by refusing to confirm its top officials.

The original Senate had no rules dealing with confirmation. Of President George Washington’s first six Supreme Court nominees, all were confirmed in two days. In 1806, the Senate did adopt a rule instructive in its simplicity: “When nominations shall be made in writing by the president of the United States to the Senate, a future day shall be assigned, unless the Senate unanimously directs otherwise, for taking them into consideration.” Unless the president sent a name found unanimously unsuitable, an up-or-down vote was required and promptly.

Of course, subsequent Senates are free to set their own rules. Nonetheless, it is some comfort that this Orwellian process that has trashed so many fine people can not be fairly attributed to our forefathers’ judicious governmental design.

J. Rich Leonard is the dean of Campbell University’s Norman Adrian Wiggins School of Law. He previously served as a U.S. bankruptcy judge and chief judge for the Eastern District of North Carolina. He is a former nominee to the U.S. Court of Appeals for the Fourth Circuit and to the U.S. District Court for the Eastern District of North Carolina.

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