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Here's What Less Experience Gets You
[FINAL Edition]
The Washington Post - Washington, D.C.
Subjects: Nominations; Judges & magistrates
Author: Gerhardt, Michael J
Date: Mar 2, 2003
Start Page: B.01
Section: OUTLOOK

Statistics show the growing importance of younger nominees in the selection of judges for the nation's federal courts of appeal. In the modern era, the average age of a circuit court nominee at the time of confirmation has gone from a high of 55.9 years under President Dwight D. Eisenhower to a low of 48.7 years under the first President [George W. Bush]. The average age of President George W. Bush's confirmed circuit court nominees was 50.5 during the 107th Congress, but his more recent choices show that he wants to follow his father's example. His circuit court nominees include not only [Miguel Estrada], but Jeffrey S. Sutton (40 when first nominated to the U.S. Court of Appeals for the Sixth Circuit), Steve Colloton (39 when nominated to the Eighth Circuit) and Priscilla Owen (46 when first nominated to the Fifth Circuit). The average age of the nominees awaiting confirmation to appellate seats is 50.1.

Relative youth is not the only virtue the Bush administration is seeking in its nominees. The people counseling Bush on judicial appointments are convinced that his father erred in appointing some judges, notably David Souter, who has become a reliable vote for the Supreme Court's moderate wing and cast a pivotal vote for reaffirming Roe v. Wade. Consequently, Bush's counselors conduct extensive interviews with prospective nominees about their judicial philosophies. Many of the nominees have been active members of the Federalist Society, established in the early 1980s to organize, cultivate and sharpen conservative thinking about the Constitution. Activity within the Federalist Society constitutes important -- and sometimes the only -- evidence of a young conservative's ideological commitment.

In every era, senators have checked presidents' efforts to shape the composition and direction of the federal courts. After Republicans had forced Abe Fortas off the Supreme Court because of ethical improprieties, Democrats scuttled his would-be replacement, President Richard M. Nixon's nominee Clement Haynsworth, for his own ethical lapses. Republicans blocked dozens of President Bill Clinton's judicial nominees, including Elena Kagan, a Harvard law professor nominated to the same court to which Bush has nominated Estrada. One Clinton nominee, Michigan state judge Helene White, waited four years without ever getting a hearing before the Judiciary Committee. Clinton's nominees were opposed because of concerns about their propensity to read their personal policy preferences into the law. Republican senators blocked Clinton's nominees with procedural tactics. Democrats at that time complained that every judicial nominee was entitled to a final vote on the Senate floor. Republicans responded that the Senate's failures to take final action on nominations were expressions of its constitutional obligation to give its "advice and consent" on them. They also claimed that the rules of the game had been constant for decades. For instance, President [Ronald Reagan] had nominated Jeff Sessions - - now a senator from Alabama -- to a federal district judgeship, but the Judiciary Committee rejected his nomination and never forwarded it to the full Senate.

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