POSTED: 01:30 a.m. HST, Aug 15, 2012
Supreme Court Justice Anthony Kennedy says the Senate confirmation for new federal judges is too political and is keeping out highly qualified candidates who don't want to go through the difficult process.
Kennedy told judges gathered in Maui that the Constitution requires Senate confirmation, but the process today is too partisan.
"This is bad for the legal system," Kennedy said. "It makes the judiciary look politicized when it is not, and it has to stop."
Kennedy, who was nominated to the court by President Ronald Reagan, isn't the first justice to criticize the current system. Chief Justice John Roberts said in 2009 that courts as a whole are concerned about politics and partisanship seeping into the judicial branch. Elena Kagan, well before she became a justice in 2010, said in a 1995 book review that Senate lawmakers had failed to engage nominees in meaningful discussions about constitutional law.
Kennedy says it's appropriate for the Senate to act politically, and for the political branch of government to have authority over lifetime appointments.
"On the other hand, there is a difference in a political function and a partisan function, and the current climate is one in which highly qualified, eminent practitioners of the law simply do not want to subject themselves to this process," Kennedy said.
Kennedy spoke Monday night before a group of several hundred judges, lawyers and other court officials at the opening session of the 9th U.S. Circuit Court of Appeals Judicial Conference.
Kennedy defended the conference itself, which has been criticized by some Republican lawmakers who say it should be scaled back or canceled because of cost.
Kennedy said judges and others need to keep learning as part of their oath to protect Americans.
"If the American public knows, and they should know, of what we do at this conference, they would be and should be immensely proud, not only of the judiciary and the members of the academy and of the bar who are here, but of the idea of law in itself," he said.
Amid the criticism, the circuit announced last month it would delay a conference planned for next year in Monterey, Calif., to 2014.
Kennedy echoed an argument circuit court officials previously made that Hawaii is just as worthy of hosting the conference as other destinations within its jurisdiction.
"It's important that this conference meet frequently in Hawaii," Kennedy said. "There is a loveliness, even a loneliness in the Pacific that makes it fitting for us to search in quiet for the elegance and the beauty of the law."
Circuit court officials said Maui was picked for its competitive room rates and cheaper flight costs because of the number of airlines serving Hawaii. Chief Judge Alex Kozinski told lawmakers criticizing the conference that at $230 per night, the Maui hotel compares favorably with similarly sized hotels in other destinations.
The court serves Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, as well as Guam and the Northern Mariana Islands.