Thank
you, Judge Lucero, for inviting me to share a few comments with
the distinguished members of the 10th Circuit Court of Appeals.
As a lawyer and during my six years as Colorado Attorney
General I have had the honor of working on many cases in the 10th
Circuit….
Thank you all for your service to our country.
In the few minutes I have before you, I want to talk
about the need to reform the nominations process for federal courts.
More and more, it seems that the nominations to the federal
bench get stuck in Washington D.C., somewhere on Pennsylvania
Avenue between the White House and the Capitol. Too many nominations
get politicized. Too many vacancies take years to fill. Too many
federal courts are short judges.
In Colorado, we have three vacancies on the Colorado
District Court. At the end of 2007, Judge Babcock and Judge Miller
assumed senior status. And then, in January, Judge Phillip Figa,
a wise and even-handed judge, passed away.
We all agree that we need to fill these vacancies as
quickly as possible. Unfortunately, the average time elapsed between
vacancy and confirmation for those serving on the Colorado District
Court has been over a year and a half.
That’s too long.
We have to find a way to accelerate the process, give
it more credibility, and depoliticize the selection and nomination
process.
How do we do that? We start by looking to what the states
are doing.
For Colorado state court nominations, under an amendment
to the Colorado’s constitution approved by the voters, a merit
selection system was established.
Under that system, a non-political judicial nominating
commission, chaired by a member of the Colorado Supreme Court,
reviews applications from interested persons wishing to serve
on the bench. That process is apolitical.
Up to three names are then submitted to the Governor
for the Governor’s consideration.
In my view, that merit selection system has worked well
for the State of Colorado. It ensures that people who may be qualified,
but don’t necessarily have strong political connections, can compete
for a position on the bench.
Colorado’s model is a good model. It is the model I followed
to find the most highly qualified people to recommend to the White
House to fill Colorado’s three district court vacancies.
The panel I assembled consisted of eight highly respected
men and women – four Republicans and four Democrats. Together,
they spent over two months reviewing more than forty-five applicants.
From those forty-five applicants, they submitted a list
of nine names to me. I interviewed them, shared my recommendations
with Senator Allard, and forwarded three names to the White House
as my recommendations.
Senator Allard also recommended two of the same people
I recommended. The White House nominated those two to fill the
vacancies. As a result, on a short timetable… at the end of an
Administration… we have a chance to reach consensus on at least
two of the White House’s three nominees to fill the vacancies
on the District Court.
Time is of the essence to fill these vacancies. We understand
that there may only be one more hearing of the Judiciary Committee
in this Congress. We have to get the Judiciary Committee to hold
a hearing on these nominees, and we need to get time on the schedule
of the entire United States Senate for them to be confirmed.
This is a herculean effort. It would be an extraordinary
measure for the Judiciary Committee and the U.S. Senate to act
on a President’s nominations during his last six months in office.
Nonetheless, I would hope that Senator Allard would join me in
our efforts to have at least two of these vacancies filled now.
I am also optimistic about the broader chances for reforming
the judicial nominations process.
On August 12, at its annual meeting, the American Bar
Association reached the same conclusion about the federal court
nomination process that I have reached.
To overcome the problems with the current confirmation
process, which ABA president H. Thomas Wells says “too often involves
lengthy, partisan conflict and delay,” the ABA passed a resolution
recommending that Senators establish the type of independent,
bipartisan commission that we established in Colorado.
Their recommendation is exactly right. By establishing
a bipartisan panel to provide recommendations, Senators will gain
the benefit of having broader advice, the expertise of their states’
legal experts and a set of consensus, bipartisan picks that have
a better chance of swift confirmation.
It is a way of restoring the public’s faith that judicial
nominations are being made for the right reasons, rather than
political reasons. It is a way of overcoming the roadblocks that
stop so many nominees as they are sent from the White House to
Congress. And it is a way of ensuring that we confirm the most
qualified as quickly as possible.
