For those of you interested in the federal judiciary here in Wisconsin, there are two current openings that have yet to be filled. This week President Bush nominated Waukesha County Judge J. Mac Davis to fill the vacancy created in the Western District by the retirement of U.S. District Judge John Shabaz.
In addition to the opening in the Western District, right here in the Eastern District, Milwaukee County Judge Timothy Dugan has been waiting for the Senate to take up his nomination to fill the vacancy created by the retirement of U.S. District Judge Rudolph Randa.
Unfortunately, it is highly unlikely that the Democratic-controlled Senate will act on the nominees. From a political perspective, it makes no sense. The Senate will simply wait out the next two months to see whether Sen. Obama can win the presidency. If he does, as I understand it, the President has the ability to request a new list of nominees.
However, as Daniel Bice points out in a JS posting, both judges indicated they would retire only if the successors were Bush nominees. Judge Shabaz was a Reagan nominee and Judge Randa was a Bush 41 nominee and is relatively active in the Federalist Society, so their convictions are in all probability strongly held.
To make things even more complicated, a recent Capital Times article indicated it was uncertain when Judge Shabaz would even be able to return to the bench after undergoing surgery. This makes it even more uncertain as to whether Judge Shabaz would be able to stand firm in his proclamation not to retire in the event a Bush nominee is not voted on in the Senate.
The impact of this election is real. I would think it is a safe assumption that a McCain presidency would result in a continuation of naming conservative jurists to the bench. While President Bush has certainly not run a blemish-free administration, from a conservative perspective, his nominees to the federal judiciary will have a positive, long-term impact upon the rule of law in this country. Judges that adhere to judicial restraint (something different from textualism) uphold our system of a limited government based on separation of powers.
If nothing else, this should simply serve as another example of the importance of this election.