The Third Branch

June 1996

Commission Recommends Reforms for Appointment of Judges

The current process for selecting and appointing federal judges requires urgent attention and reform, concluded a blue ribbon bipartisan commission.

The size of the federal Judiciary, the number and duration of judicial vacancies, and the increasingly complex and prolonged process for judicial selection and appointment have exerted a profound impact on the filling of judicial vacancies, said the commission, which was organized and sponsored by the Miller Center of Public Affairs at the University of Virginia.

The commission conducted interviews with the various participants in the process of judicial selection, including representatives from the White House, Department of Justice (DOJ), Federal Bureau of Investigation (FBI), American Bar Association (ABA), and the Senate Judiciary Committee. The commission also invited and received comments from federal judges.

"It is our view that the important process of appointing federal judges need not be as difficult as it now seems," the commission said in its report. "The ultimate question is simply whether or not potential candidates have the qualities of integrity, good judgment and experience to become judicial officers of the United States. Occasional mistakes will be made. But no amount of bureaucratic vetting or testing for ideology will achieve perfection, and too complex a process can do more harm than good."

The commission adopted a series of recommendations dealing with the selection of nominees, the Senate confirmation process, redundancies in paperwork, and advance processing of nominees. The following are the recommendations.

• Senators should identify candidates before the vacancy to be filled occurs, and those candidates should be vetted promptly, either before the vacancy occurs or within 30 days thereafter. In no event should a senator's recommendation of candidates go to the Administration later than 90 days after the creation of a judicial vacancy.
• Senators should recommend two or more names, in order of priority, for each vacancy in order to avoid delays in the event that a potential nominee becomes unavailable or undesirable. If a senator does not respond to the request for more than one name, then the Administration should advise the senator of additional persons whom the Administration would like to consider.
• Officials in the executive branch concerned with the selection of judicial nominees should develop and maintain lists of prospective judicial nominees for district and appeals courts. If senators have not made their recommendations within 90 days of the creation of a district court vacancy, the president should proceed with the Administration's own nominee and, if confirmation is delayed, make a recess appointment.
• The White House, DOJ, FBI, and ABA should complete their investigations of potential judicial candidates within 90 days of candidates being proposed by the senators.
• The ABA Standing Committee on the Federal Judiciary should provide the Administration and the Senate Judiciary Committee with a brief statement of the reasons for its rating. The ABA also should expand the size of its committee and have more than one representative from each circuit.
• The White House and the DOJ should consider reducing the breadth and extent of questions posed to judicial candidates, to duplicative inquiries, and to whether personal interviews are really needed.
• The Senate Judiciary Committee should increase the number of its staff attorneys charged with investigating judicial nominees. When there are an unusually large number of nominations pending, the DOJ should continue its present practice of lending personnel to the Senate Judiciary Committee for the purpose of expediting its investigations.
• If a judicial nominee is noncontroversial, the Senate Judiciary Committee should forgo holding a confirmation hearing. Nominees should be cleared for full Senate confirmation within two months of the receipt of the nomination.
• Prospective nominees for judicial office should be required to complete a single questionnaire, which supplies all information sought by the various agencies and committees. These entities should explore whether it is necessary or appropriate to obtain all the information presently sought in questionnaires.
• Congress should enact a statute providing that an additional judgeship is created on the date an incumbent judge becomes eligible for senior status, if the incumbent judge does not take senior status on that date. The number of authorized judgeships would be reduced by one when the incumbent takes senior status, retires, or dies, if the newly created position has been filled.

The commission was composed of present and former federal judges, former White House counsels to Republican and Democratic presidents, former DOJ officials, two former U.S. senators, a prominent attorney, and a law school professor. The co-chairs were former Attorney General Nicholas deB. Katzenbach and former Deputy Attorney General Harold R. Tyler, Jr.