“Best practices” for federal judicial selection

The upcoming presidential election has been characterized as a defining moment in the American political landscape, with voters facing a stark choice between two candidates offering vastly different visions and blueprints for America’s future. Critical issues include the war in Iraq, the war on terror, the scope of executive authority, global warming, oil dependency, abortion rights, federalism, and the struggling American economy. Of special relevance to Judicature’s readers is the matter of judicial vacancies, particularly those on the United States Supreme Court, where a single change in membership (a virtual certainty during the next presidency) could have an extraordinary impact on some of these, and countless other, issues.

Less visible, but of no less importance, will be the next president’s opportunity to seat judges--potentially hundreds of them--on the nation’s lower federal courts, the U.S. district courts (with 665 currently authorized judges) and the U.S. courts of appeals (with 179 authorized judges). When the Supreme Court renders decisions on the merits of only approximately 70 cases per year, the lower federal bench has effectively final responsibility to resolve hundreds of issues with broadly important policy implications.

As well documented in Judicature, over the past two decades the advice and consent processes for confirmation of judges to these courts have been greatly flawed. Historic levels of obstruction and delay have seriously compromised the president’s nomination authority, while disputes over proper senatorial confirmation criteria have approached nuclear proportions and have threatened to bring a halt to the Senate’s very functioning. Although there is disagreement whether the current state of affairs was brought on by the Republicans or the Democrats, the upcoming election provides a unique opportunity for the candidates to agree, before the outcome of the election is known, to processes and behaviors that can only help to lower the temperature of judicial selection politics. Such an agreement could assure that the process works to seat judges in a reasonable amount of time while still recognizing the president’s prerogative to nominate and the Senate’s to provide meaningful advice and consent, with particular attention to the views of senators from the states in which district and appeals court vacancies are being filled.

The American Bar Association has undertaken the daunting task of forging the terms of such an agreement. Following the request of then incoming President H. Thomas Wells Jr., the ABA’s Standing Committee on Federal Judicial Improvements, chaired by Judge Margaret McKeown of the 9th Circuit U.S. Court of Appeals, appointed a task force composed of lawyers, judges, lay persons, and legal academics to re-examine ABA policies on federal judicial selection and to revise them in light of present realities. The American Judicature Society accepted the invitation of President-Elect Wells and Judge McKeown to participate in the Task Force’s work and the drafting of its recommendations and was represented throughout the Task Force’s deliberations.

Following the recent passage of its recommendations by the ABA’s House of Delegates, the ABA now seeks the adoption of these measures and the support of Senators Obama and McCain, as well as the members of the U.S. Senate, whose acceptance of the recommendations will be critical in advancing the reforms. AJS is committed to offering its continued support to the Task Force’s recommendations and also urges their acceptance as pragmatic ‘best practices’ for federal judicial selection that promise to assure high quality nominees and the expedited seating of judges.

To summarize the key features of the recommended ABA/AJS policies, the resolution:

* Calls for the ‘selection of men and women of diverse backgrounds and experiences,’ with ‘professional competence, integrity, and judicial temperament, including commitment to equal justice under law.’

* Seeks to end the ‘undue divisiveness that “has compromised” judicial selection--limiting the ability of the President and the Senate to exercise their constitutional roles and serving to discourage some able lawyers and judges from being willing to be considered for service as federal judges.’

* Supports ‘the practice of federal judges providing advance notice of their intention to leave active federal judicial service’ in order to ‘facilitate the timely nomination of individuals to vacant judgeships.’

* Urges each state’s senators ‘jointly to appoint (in cooperation with others not of their party when appropriate) bipartisan commissions of lawyers and other leaders reflecting the diversity of the profession and the community, to evaluate the qualifications of prospective district judges and to recommend possible nominees whom their senators might suggest for the President’s consideration.’

* Recommends that ‘the President consult with Senate leaders of both parties and the home state senators in advance of submitting nominations, so as to inform the exercise of the President’s nominating authority and to promote the Senate’s exercise of its authority to determine whether to consent to the nomination.’

* Counsels senators to promptly ‘forward suggested district judge nominees to the President’ and, particularly for those names coming from bi-partisan commissions, ‘urges expedition by the President in selecting nominees and by the Senate in reviewing those nominees.’ Although undoubtedly more difficult to implement, similar recommendations are made for courts of appeals nominations, where presidential prerogatives loom larger and the role of individual senators recedes in historical judicial selection processes.

We recognize that the adoption of any or even all of these measures would not be a panacea for the ills of contemporary federal judicial selection. Indeed, the recommendations for circuit court processes, a politically delicate domain where the most egregious obstruction and delay actually occurs, are purposely under-defined, leaving much room for senatorial/presidential accommodation and compromise. Adopting these reforms, however, would lead to less vitriolic advice and consent behavior by all of the players in the process. Present commitment to these reforms by the presidential nominees prior to knowing who will control the White House (or the Senate) would set the tone for renewed inter-institutional cooperation in confirmation politics, replacing the current judicial selection atmosphere of deeply partisan polarized coalitions, one of which is presidentially centered, warring over the spoils of judicial vacancies.

We also realize that the two presidential candidates likely differ in the kinds of nominees they would seek to seat on the federal bench in an unconstrained appointment setting. To be sure, a president is entitled to nominate those qualified judicial candidates he prefers, and senators retain the prerogative to question and accept or reject those nominees. Nevertheless, the present system--which often leads to a White House and Senate that are poles apart in their estimation of judicial nominees--is so flawed as to be untenable. The ABA/AJS recommendations promise gravitation towards the judicial center, as well as an expedited selection process, with well-qualified judges chosen who are broadly acceptable to the American public. For our next president, this would mark significant improvement over a situation where scores of ‘radioactive’ nominees have languished in the confirmation process, sometimes for several years, some of them never receiving a Judiciary Committee hearing or a confirmation vote on the Senate floor.

For senators of the president’s party or in the Senate majority, these recommendations would result in some immediate loss of personal prerogative in selection processes. Presidential parties and Senate majorities do change, however, and authority ‘lost’ by advantaged senators will be gained by Senate minority members and home state senators not of the president’s party, a position that any senator may some day find herself in. Good faith implementation of these recommendations would mitigate some of the worst excesses of the ideological battleground that has defined our federal judicial selection processes for far too long. With a presidential election of unknown outcome only months away, now is the time to adopt the pragmatic recommendations of the ABA’s Judicial Nomination Task Force.