An open access publication of the American Academy of Arts & Sciences
Fall 2008

Congress & the court: judicial confirmation

J. Harvie Wilkinson

J. Harvie Wilkinson III has been a Judge on the U.S. Fourth Circuit Court of Appeals since 1984, serving as Chief Judge from 1996–2003. He is the author of “One Nation Indivisible: How Ethnic Separatism Threatens America” (1997) and “From Brown to Bakke: The Supreme Court and School Integration, 1954–1978” (1979).

The congressional-judicial relationship is frayed but not broken.1  Positive aspects of the relationship don’t grab headlines: Congress has frequently been responsive to the judiciary’s budget requests and courthouse security needs, and open to discussion on bills affecting the judicial function, for example. But even the best relationships have their ups and downs.

One of the recurrent trouble spots in congressional-judicial relations is the process of Senate confirmation of judicial nominees. The judiciary respects the fact that the Senate has a special constitutional duty to perform in judicial confirmations. Its role requires both care and inquiry before approving what are, after all, significant lifetime appointments. However, two special dangers to the judiciary arise from the present state of affairs. Both dangers, if not attended to, will have serious adverse impacts on judicial function.

First, over the past decade nominees of real distinction have had an increasingly difficult time with the Senate confirmation process. I have often spoken about the dangers that growth in judgeships poses to the functioning of the federal appellate courts. Regardless of one’s views on the issue of increasing the number of judges on the circuit courts, no one can reasonably dispute that we absolutely must maintain the quality of judges nominated for the bench. According to some, stagnant judicial salaries pose the greatest threat to the quality of the bench. But at least as grave a danger is a newly emergent skepticism on both sides of the aisle toward professional distinction of all sorts.

The more distinguished the nominee, seemingly the less likely he or she is to receive a hearing or actually be confirmed. These distinguished nominees have commanded great respect in one or another aspect of the legal profession. Some have achieved prominence in private practice, others in academia, still .  .  .


  • 1This paper is taken from a talk given at the 1857th Stated Meeting of the American Academy of Arts and Sciences held on March 21, 2002.
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