"Best Practices" for Federal Judicial Selection
Good faith implementation of the ABA's Judicial Nomination Task Force recommendations would mitigate some of the worst excesses of the ideological battleground that has defined our federal judicial selection process for far too long.
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 PresidentElect 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. …