Interviewing Judicial Applicants: A Critical Nominating Commission Function
Judicial nominating commission interviews provide an important opportunity to assess applicants for the bench, but the process must be fair and impartial.
Since its founding in 1913, AJS has searched for ways to minimize partisan (or interest group) politics in judicial selection. The cornerstone of this commitment to impartial judicial selection is AJS's merit selection plan. Thirty-two states and the District of Columbia have adopted some form of merit selection. A critical piece of the merit selection process is the nominating commission, consisting of a diverse group of lawyers and nonlawyers. In turn, a critical function of the nominating commission is interviewing judicial applicants. During interviews, the commissioners have a chance to take stock of the candidate as a person and assess such important qualifications as judicial temperament. Unfortunately, however, any problems of commission partiality are perhaps most likely to surface during the interview process.
Written applications can be carefully constructed to avoid improper questions. The give and take dynamic that makes interviews valuable, on the other hand, requires that commissioners observe the fine line between seeking useful information about a candidate and inappropriate questioning. Questions about controversial subjects cannot and should not be forbidden, because a candidate's answers can provide useful, job-related information on how well informed a candidate is about issues that face judges every day. Moreover, a candidate's responses allow commissioners to observe that individual under pressure. Questions that cross the line into political or ideological interrogation or inquiries that the law forbids, however, can bring the entire process into disrepute. Questions about a candidate's religion, sexual preference, or marital status, for example, are improper because there is no relationship between the information they seek and any job qualification.
Recent reports of inappropriate and offensive questioning of judicial candidates are occasion for serious concern. Candidates have been asked if they were "God-fearing" and active in their church. They have been questioned about their views on homosexuality. One candidate was even asked to do an impression of a local Afro-American judge. Although such behavior initially seems merely boorish, in fact it endangers public confidence in the selection of fair, qualified judges.
This year AJS published the second edition of its Handbook for Judicial Nominating Commissioners, originally published in 1984. …