A Needed Change-An Improved Process for Nominating and Confirming Federal Judges

By Tunheim, John R. | Judicature, May/June 2008 | Go to article overview

A Needed Change-An Improved Process for Nominating and Confirming Federal Judges


Tunheim, John R., Judicature


It is summer and Americans are participating in a presidential election that has attracted enormous attention and brought millions of voters to the primary elections and caucuses. Senator McCain and Senator Obama are both promising change-a new way of getting things done in Washington. Candidates throughout America are emphasizing their abilities to work in a bipartisan manner to improve the climate in our nation's capital.

One change I would like to see is an improved process for nominating and confirming federal judges. Although the system is not broken, recent years have seen lengthy delays in the appointment of federal judges and sometimes extreme partisan bickering. Some judgeships go unfilled for long periods of time and as a result, America's confidence in its justice system has been shaken. The merits of judicial nominees have often been described in ideological terms, and the public has taken notice.

An American Bar Association Task Force under the leadership of the Standing Committee on Federal Judicial Improvements, chaired by Ninth Circuit Judge Margaret McKeown, who is also a member of the AJS National Advisory Council, has proposed a sensible solution to the worsening problems of the confirmation of federal judges. AJS has strongly supported the task force and has participated extensively in its work. (I would like to thank professors Elliot Slotnick and Jon Gould who served as the AJS representatives on the task force). The ABA House of Delegates will consider the recommendation in August.

The recommendation proposes that bipartisan nominating commissions be created in all states and in each circuit. Currently, senators in only eight states utilize formal nominating commissions. The recommendation also suggests that sitting judges give advance notice of their intent to take senior status or resign, and that there be expedition in all phases of the nomination and confirmation process.

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A Needed Change-An Improved Process for Nominating and Confirming Federal Judges
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