Judicial Appointments: Checks and Balances in Practice

By Brand, Rachel | Harvard Journal of Law & Public Policy, Winter 2010 | Go to article overview

Judicial Appointments: Checks and Balances in Practice


Brand, Rachel, Harvard Journal of Law & Public Policy


Much could be said about the intersection of judicial appointments and the subject of this Symposium, the separation of powers. My own view of how the executive and legislative branches interact and share power when selecting judges to fill the federal courts is very practical. This Essay focuses not on how the two branches should relate in an academic or idealistic sense, but on how they do relate, based on my personal observations. I first watched this interbranch relationship in action when I assisted with judicial nominations as a lawyer in the White House Counsel's Office at the beginning of President George W. Bush's first term and later as the Assistant Attorney General for Legal Policy in the Justice Department, where my office shepherded judicial nominees through the confirmation process.

The public tends to focus on the President's role in choosing judicial nominees and on the Senate's role in approving or vetoing them after nomination, but the process is an exercise in power sharing well before a nomination is made. In practical (as opposed to constitutional) terms, the home-state senators are almost as important as--and sometimes more important than--the President in determining who will be nominated to a particular lower-court judgeship. Senate procedure and tradition effectively give individual senators veto power over nominations for judgeships located in their respective states.

When the President makes a nomination, both home-state senators receive a "blue slip" (1)--a blue piece of paper that the senator returns to the Senate Judiciary Committee indicating whether he is willing to allow the nomination to move forward. If one of the home-state senators wants to derail a nomination, he can return the slip with a negative indication or simply never return it to the Committee at all. (2) Because the Committee chairman usually will not hold a confirmation hearing for a nominee until both home-state senators have returned positive blue slips, the nomination will then languish indefinitely, and the judgeship will remain vacant. (3)

Understandably, presidents prefer that their nominees are not blue-slipped, and thus typically consult with home-state senators before making nominations. Consultation can have a variety of meanings. Presidents tend to be especially deferential to senators" wishes regarding district court vacancies, and some senators seem to believe they have unrestricted control over appointments to lower-court judgeships. To achieve some balance between senators' wishes and the President's constitutional prerogatives, President George W. Bush asked home-state senators to recommend at least three names for each district court vacancy. He received varying levels of acquiescence with that request, ranging from cooperation to complete disregard.

Recent presidents have tended to be less deferential to home-state senators' wishes regarding circuit court nominations. President George W. Bush made it known that, although he would consider senators" views on circuit court nominations, he would leave himself more discretion in selecting nominees to appellate courts. (4) This approach was met with varying receptions among senators, some of whom regard circuit court nominations, like district court nominations, to be their prerogative. In one example, a senator held a press conference to announce his selection for a judgeship before even providing the name to the White House, stating erroneously that he had "nominated" that person to the bench.

Recent press accounts indicate that President Obama shares President George W. Bush's policy regarding circuit court appointments. His counsel, Gregory Craig, reportedly said as much to Democratic senators, eliciting a less-than-enthusiastic response from the caucus. (5) The bottom line, however, is that the Senate currently uses the blue-slip process for circuit court nominations, just as it does for district court nominations. …

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