Is the appointment process for judges desperately broken?

The friendly fire stunned his followers.

"It's the mentality of a circular firing squad," said Jonathan Adler, a professor at the Law School of Case Western Reserve University.

The Rao process sums up the modern confirmation system where proxies juxtapose their nominee to the ferocity of a campaign, with Democrats and Republicans getting rid of the long-running Senate rules in turn, and some wonder if the system has become irremediably broken, erasing the boundaries judicial and political branches.

Judgment of the Supreme Court

The appointment of Rao to the US District Circuit of the District of Columbia in the United States, to fill the vacant seat of Brett Kavanaugh, was announced by Trump himself in November at a ceremony at Diwali at the White House. The President surprised some with the impromptu announcement that was made 24 hours earlier than expected.

"We will never do better than that," said the president, watching the assembled crowd.

After announcing his name, he said, "This could be a great story."

He knew very little.

Rao was finally voted by the Judicial Committee, 12 to 10 on Thursday, in the sense of a partisan politics. But it was not a resounding endorsement.

Republican Senator Joni Ernst of Iowa said she would vote for Rao because of her expertise in administrative law. But Ernst described some Rao articles about rape of dongles as "disgusting", written years ago when she was a student at Yale University. They echo the sentiments of the Democrats.

Rao once wrote: "It always seemed obvious to me that even though I drank a lot, I would still be responsible for my actions … A man who rapes a drunk girl should be prosecuted. good way to avoid potential rape is to stay reasonably sober. "

Rao has since apologized.

But Ernst then did something unusual. She said that if Rao ever had a chance to sit on the Supreme Court, she could not vote for her.

"I also want to clarify that if Ms. Rao were to be appointed judge for another court at another time, my decisions, my review procedures and my considerations could be very different," said Ernst.

Senator GOP, Ted Cruz of Texas, expressed a similar sentiment.

The statements highlight a complication in the current system. Very often, presidents designate personalities in lower jurisdictions and a premature battle for the Supreme Court begins.

This means that a lower court hearing becomes an essay for the Supreme Court, even if there is no vacancy on the horizon.

"If the intellect, qualifications and background of Neomi Rao make her a potential candidate for the Supreme Court, this should be celebrated, not the basis of attacks," Adler said.

Whispering (and screaming) campaign

Ernst's fears did not resemble the fireworks that arose when Senator Josh Hawley, Missouri Republican, questioned Rao's point of view on the issue. abortion just after his confirmation of hearing.

For nearly two years, a troika of power composed of White House lawyer Don McGahn, the then president of the judiciary, Chuck Grassley, and the Senate majority leader, Mitch McConnell, had triumphed in a record number of candidates. But McGahn left the White House, Graham succeeded Grassley and Hawley's comments surprised the new, less experienced teams.

In the end, Hawley said he would vote in his favor.

But first he attacked the Republicans who had reproached him for publicly expressing his first reservations. He told his colleagues that he had been sent to Washington to "change a broken down system" and that he was determined to scrutinize each candidate thoroughly.

After Hawley spoke, Senator John Kennedy, R-Louisiana, congratulated Hawley and offered a rare glimpse of the pressures on some senators.

"The last time I checked, the Constitution provided that we were supposed to advise and give our consent," Kennedy said, "no outside interest groups".

Kennedy added that he was offended by "an effort obviously organized by some" to "impose their will on the members of this committee" and that he was tired of it.

"I've had Mr. Hawley's experience, I did not like it, people came to my office and talked about the contributions to the campaign, I did not get it. "I have not appreciated it and I do not like it for Senator Hawley," said Kennedy.

Kennedy evoked a whispering campaign that emerged around Rao. Two sources, for example, say that this has been fueled by those who fear that if a vacancy is to be filled in the Supreme Court, Rao may threaten the chances of other candidates who have a more established record of abortion .

Once again, there are currently no vacancies on the Supreme Court.

Commercial blame

The voices of Republicans in a very divided Senate are the obstacle of Rao. But deterioration between the parties has also intensified in recent years.

Judge Ruth Bader Ginsburg and the late Judge Antonin Scalia were confirmed respectively 96-3 and 98-0, while she was a former ACLU lawyer and he was a pioneer of the principles. preservatives. Such votes would be unheard of today.

Graham often notes that as a Republican, he voted to confirm the candidates of President Barack Obama, Judges Elena Kagan and Sonia Sotomayor. As president, he has already witnessed the fact that both parties were pointing at each other, blaming each other for the current quagmire.

Democrats, for example, point out that it is the Senate Majority Leader, Mitch McConnell, who has refused to hold hearings of the candidate for Obama's candidacy, Merrick Garland, at the Supreme Court after the death of Scalia in February 2016.

Republicans often oppose the fact that the leader of the Democratic majority at the time, Harry Reid, had changed the game book in 2013 by removing the long-standing rule that 60 votes were needed to end a filibuster on a candidate for the judiciary. The move has allowed some Obama choices to be confirmed on the DC circuit.

The committee is currently debating wildly about the Senate's longstanding custom of honoring a senator's objection from his home country to a candidate by submitting "blue leaflets" To block the application.

Graham is not alone in thinking that the system is down. Several Supreme Court justices have said the same thing. In 2016, Chief Justice John Roberts lamented that the politicization of confirmation hearings would change the way the American people would come to see the judicial system.

"When you have a highly political, divisive audience process, it increases the risk that anyone who comes out is considered as such," Roberts said in a speech at the time. The comments were made prior to the Garland controversy and the hearings of Neil Gorsuch and Brett Kavanaugh.

But nobody seems to think that something will change soon. On Monday, the Senate resumed its work to resume consideration of Allison Rushing's candidacy for the 4th Circuit Judge.

In her late 30s, she is one of the youngest nominees of Trump.

Alliance for Justice, a progressive group, has announced its opposition.

"Like many other Trump nominees, she seems to have been chosen on the basis of her commitment to conservative causes and organizations rather than her legal career and experience," they said on their website.

His supporters point to his excellent references, including a clerk with Gorsuch when he was in the lower court and Thomas at the high court.

The murmur has already begun: she could one day be appointed to the Supreme Court.