Today's Senate confirmation battles and the role of the federal judiciary.

• Author: O'Scannlain, Diarmuid F.
• Position: Commencement address for the Lewis and Clark Law School, May 24, 2003

It is an honor for me to be with you at the 118th commencement of the Lewis & Clark Law School here in Portland, Oregon. (1) Honored though I am, it is nevertheless hard for me to believe, as I stand before you on this most joyous occasion, that forty years have passed since I sat where you are now sitting. While some of you may be able to envision yourselves forty years hence, you must believe me when I tell you that, on my graduation day, I had no inkling that I would be where I am now. And having just attended my own fortieth law school reunion, I can assure you that some of my classmates were only too eager to remind me that they could not believe that I had become a federal judge, either.

Perhaps among your graduating class there is a future federal judge or two. Serving the nation in such a capacity is a worthy ambition, to be sure. I fear, however, that many lawyers who would otherwise welcome such an opportunity may feel compelled to decline it when faced with the prospect of enduring what has become--at least at the appellate level--an increasingly acrimonious Senate confirmation process.

My own nomination was blessedly free of partisan strife. Early on the morning of August 8, 1986, the telephone rang at my home, and my wife Maura answered. "It's for you," she shouted upstairs, where I was in the shower. "I think it's the press," she added.

"Tell them I'll call back," I said.

But, the caller persisted. "The Pres-i-dent of the United States is calling."

Needless to say, I threw a towel around myself and picked up the bedroom phone to hear President Ronald Reagan himself graciously ask if he had my permission to sign some papers on his desk. Three days later, my nomination arrived in the Senate, which held a hearing less than a month after that, on September 10. The hearing lasted all of twenty minutes and two weeks later, on September 25, Senator Mark Hatfield called me at home to tell me that I had been unanimously confirmed.

My confirmation experience--all six weeks of it--contrasts sharply with those of my Ninth Circuit colleagues, Judges Richard Paez, Willy Fletcher, and Marsha Berzon, who endured protracted, years-long confirmation battles. (2) Similar confirmation ordeals are playing out as I speak. (3)

One wonders what the Founders would have thought of the increasing intensity with which both parties have waged their respective confirmation rights. After all, it was Alexander Hamilton who famously wrote, more than two centuries ago, in Federalist No. 78, that "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them." (4) If, as Hamilton believed, the courts were the "least dangerous" branch, then why the pitched battles over nominations to the supposedly un-dangerous courts?

The easy answer, of course, is that, while the federal courts may lack the power to "annoy or injure" "the political rights of the Constitution," they nevertheless have come to possess an uncanny knack for annoying large portions of the population. A recent example of this curious judicial tendency is my own court's controversial decision in Newdow v. United States Congress, in which a bare majority of a three-judge panel declared unconstitutional the practice of reciting the Pledge of Allegiance in public schools. (5)

Insulated as we federal judges are from direct popular influence--the Founders saw to that by bestowing life tenure upon us and by preventing Congress from reducing judicial salaries (6)--the people and their elected representatives have sought to exert what influence they can. The results have ranged from the symbolic--the "Impeach Earl Warren" bumper stickers of the 1960s come to mind--to the legislative. In the wake of the Newdow decision, for example, at least one congressman has threatened to introduce a bill to strip federal. courts of jurisdiction over cases involving the Pledge. (7)

But the primary means by which the political branches exert control over an otherwise insulated federal judiciary--especially during the last decade and a half--has been the confirmation process. Thus, the disputes over this or that nominee are not an end in themselves but rather a reflection of a larger trend: the seemingly ever-increasing centrality of federal courts in our divided system of government. Indeed, on issues such as abortion, assisted suicide, affirmative action, and church-state relations, the courts have become a focal point--perhaps the focal point--in the loosely defined national debate that goes by the now-tired label of "the culture wars."

The courts, to judge from the heated language in the hearing rooms of the Senate Judiciary Committee and in the pages of the nation's newspapers and magazines, are no longer the "least dangerous branch," but perhaps the most dangerous. As is often the case in such debates, the language, while overheated, nevertheless contains an element of truth. The federal courts do decide cases of great social, political, and even moral significance. That this is so is an unavoidable byproduct of our tripartite system of governance. It is critical to note, however, that the power wielded by judges was meant, by its very nature, to be impersonal and strictly circumscribed. The federal judiciary, Hamilton noted in Federalist No. 78, "has no influence over the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment. That this original conception remained the norm for some time after the founding is evident in the writings of that most astute observer of America, Alexis de Tocqueville, who in the mid-1800s observed that "[t]he federal judges feel the relative weakness of the power in whose name they act, and they are more ready to give up a right to jurisdiction in cases where the law has given it to them than to claim one illegitimately." (9)

This emphasis on judgment and reserve, as opposed to force or will, is telling. The creation of the...