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Judicial confirmation process 'broken,' federal appeals judge says Friday, Oct 26, 2007 By John Lyon Arkansas News Bureau LITTLE ROCK - The judicial confirmation process is "broken" and needs an overhaul, a federal appeals court judge whose confirmation process lasted three years said Thursday. Senate confirmation of a president's judicial nominees should be rigorous but should not be allowed to drag on for years, said Brett Kavanaugh, a member of the U.S. Court of Appeals for the District of Columbia Circuit. Kavanaugh was a guest speaker Thursday at the University of Arkansas Clinton School of Public Service. President Bush nominated Kavanaugh was appointed to the federal bench in July 2003 but Kavanaugh was not confirmed until May 2006. "It's a problem because ... we want to continue to attract people to the judiciary who are at the top of the profession, but people are shying away from it," Kavanaugh said Thursday. "People don't want to go through a three-year confirmation process. People don't want to have their lives dragged through the mud in the way that the confirmation process works now." The process needs time limits, Kavanaugh said. "Whether it's one year from nomination to final vote or it's six months, there needs to be some process put in place," he said. Bush's nomination of Kavanaugh drew criticism from some in the Senate who said Kavanaugh, who was 38 at the time of his nomination, lacked experience and was nominated for partisan political reasons. Kavanaugh served as staff secretary in the Bush White House before being nominated to the D.C. Circuit. As an associate counsel in the Office of Independent Counsel in the late 1990s, he co-authored Kenneth Starr's report to the House on President Clinton. Previous service in public life should not disqualify a judicial nominee, Kavanaugh said Thursday. "Our system, throughout our history, has been one where we attract judges from all walks of public and private life. It's really important that we not disqualify people because they've been involved in a difficult public issue, because they've served in the Senate, because they've been involved in the executive branch," he said. Kavanaugh said the confirmation process often becomes a game of "political payback." This phenomenon first appeared at the U.S. Supreme Court level but has "seeped down" to the appeals court level, he said. "Instead of recognizing that we're looking for the best lawyers we can find who are willing to serve on the appeals court, people are being penalized for positions they might have taken, or clients they might have represented, or issues they might have been involved with, or for people with whom they've associated through their career," Kavanaugh said. Earlier this year, two Democratic senators, Patrick Leahy of Vermont and Richard Durbin of Illinois, accused Kavanaugh of misleading them during confirmation hearings when he said he had no role in developing the Bush administration's policies on detention and interrogation. The D.C. Circuit responded with a statement asserting that Kavanaugh's statements were accurate and indicating he would not agree to a request from Durbin that he recuse himself from all cases involving enemy combatants. In an interview Thursday with the Arkansas News Bureau, Kavanaugh said his former role in the Bush administration does not require him to recuse in cases involving the administration's policies. "The federal code has a different rule (on when judges should recuse) for private practice versus prior government service, and this is based on our history," he said. "When Byron White went on the Supreme Court after working for President Kennedy (as U.S. deputy attorney general), he didn't recuse in all the Kennedy administration cases." If judges with previous government service had to recuse from cases involving the government, "they wouldn't be a able to hear a large segment of cases for many years," Kavanaugh said. Kavanaugh was asked how it felt to be invited to speak at a school founded by Bill Clinton nine years after his work on the Starr Report. "It's a school of public service that, as I understand it, has been inviting people from different perspectives from the judiciary, from the legislative, from the executive (branches). So I was pleased to be invited to come talk about public service and talk about the judiciary," he said. |
