Federal Judicial Selection

Article excerpt

IN HISTORY AND SCHOLARSHIP

The American Judicature Society was a relative latecomer to the federal judicial selection process, focusing on state judicial selection issues for much of the twentieth century. In recent decades, however, AJS has taken on a leadership role in the efforts toward merit-based selection of federal judges, diversifying the federal bench, and tracking the influence of external interests on the federal judiciary.

The process for appointing federal judges is prescribed in the Constitution, and for most of American history federal judicial selection has proceeded straightforwardly. Presidents made nominations quickly; the Senate rejected very few judicial nominees. Confirmation was once so certain, in fact, that in the late 1970s, the public interest organization Common Cause referred derisively to the U.S. Senate as a "rubber stamp machine" for Presidents' nominees.1 Even in the contemporary era, relatively few judicial nominees have been rejected, although the amount of time nominees wait between nomination and confirmation has increased significantly in recent history. The Congressional Research Service reports that just 19 of more than 2,500 nominations to the U.S. district court and courts of appeals were rejected between 1939 and 2009, and even fewer lower court nominees were rejected or withdrawn during the nineteenth century.2 Nominations to the U.S. Supreme Court have always been somewhat more controversial, but nearly 80 percent of Supreme Court nominations have been confirmed since 1789.3

The process's general efficiency and the rarity of judicial misconduct (there have been only seven removals of federal judges through impeachment and Senate trial in U.S. history) meant that the federal judicial selection process was largely excluded from the judicial reform movements that swept legal circles during both the nineteenth and twentieth centuries. Similarly, the federal judicial selection process was not generally a subject of significant concern to legal observers and scholars until after 1950. Although soon after its founding in 1913 the American Judicature Society established itself as a leading voice for reforming judicial selection within the states, even AJS paid little attention to the federal courts in its early years. Indeed, a 1921 AJS essay noted: "The American Judicature Society has restricted its attention to state systems, one reason being that the United States courts have generally been better off than state courts and because opportunity for any general revision has not seemed imminent."4

AJS was not alone in neglecting the federal judiciary; none of the prominent law or politics periodicals paid much attention to it. To be sure, from time-to-time scholars and practitioners criticized or even proposed changes to the appointment process, but that scholarship was rare and tended to be descriptive and historical.5 It was not until the late 1960s, after the failed appointment of Abe Fortas to the position of Chief Justice of the United States, that federal judicial selection came under significant scrutiny and public law scholars began to examine the process in a systematic and empirical way.

To the extent that federal judicial selection has been a subject for scholarly attention, the concerns have been remarkably stable. Several issues have persisted over time, including the proper role of the executive and legislative branches in the appointment process;6 the influence of patronage and politics on the appointment process;7 the influence of organized interests;8 and how best to ensure that the federal bench represents the people it serves.9

AJS and Judicature were crucial parts of the transition away from haphazard attention to federal judicial selection and toward a significant body of research on the subject. Beginning in the 1970s, Judicature became an important forum for scholarship on the diversification of the federal bench; in the 1980s and 1990s, it regularly published scholarship focused on the politicization of the federal judiciary through the appointment process. …