Judicial Selection is Study for Professor

Dr. Sheldon Goldman, professor of political science at the University of Massachusetts, Amherst, is the author of Picking Federal Judges (1997, 1999) and The Federal Courts as a Political System, (3rd ed., 1985), in additional to other works and numerous articles in professional journals including American Political Science Review, Journal of Politics, and Judicature and chapters in books. He is chair of the Law and Courts Section of the American Political Science Association, 2000-2001; and a member of the Editorial Board, Law &Politics Book Review, 1994-1997; American Political Science Review, 1981-1985, and American Journal of Political Science, 1979-1982.

_Q:What prompted you to study the federal judicial selection process and those nominated?

_A: I became interested in federal judicial selection while a graduate student some 40 years ago in a seminar I took with the late Harvard Law School Professor Arthur Sutherland. I was struck by the fact that so little was known of the lower federal judicial selection process and even less about the backgrounds and attributes of those selected. I began then what turned into an ongoing interest about the politics of selection and the judges that emerge from the process.

_Q:What is the scope of your research and how are your findings used?

_A:My research focuses on the politics of the selection process and the backgrounds and attributes of those chosen for judgeships. I look at such variables as education, legal experience, judicial and/or prosecutorial experience, ABA rating, age, ethnicity, gender, net worth, political party preference at time of nomination, party activism, and religious affiliation or preference. There are many data sources I have used including the questionnaires the nominees complete for the Senate Judiciary Committee, which are a matter of public record. But public data sources are sometimes incomplete and I have relied on the cooperation of many federal judges over the years. Indeed, I want to take this opportunity to publicly thank the many federal judges who have answered my queries, queries that undoubtedly may have seemed invasive or even presumptuous, for example, questions about political party preference at the time of nomination and religious affiliation or preference. Data on party preference and religion, for example, along with other backgrounds and attributes, have been used by me and others to document both short and long-term changes in the collective portrait of the Judiciary, as well as to highlight the trends from each presidential administration. My research findings have been published in numerous journal articles and in my book Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan (Yale University Press, paper, 1999). I am currently studying the process and nominees emerging from the administration of George W. Bush.

_Q:Generally, how involved are Presidents themselves in the selection process?

_A:Presidents have varied as to their personal involvement in judicial selection. Presidents Taft and Franklin Roosevelt were probably the most involved of twentieth century presidents. Presidents Harding, Eisenhower, and Reagan probably the least. The evidence suggests that the first President Bush was not much involved but that President Bill Clinton played a more active role. Of course presidents are most involved, as one would expect, with Supreme Court appointments, and ordinarily are less involved with lower court selection. President Ronald Reagan personally telephoned each judicial nominee offering him or her the nomination. That had not been done before except in a few isolated instances. Although, as I have suggested, President Reagan was generally disengaged from the lower federal court selection process, this personal touch was much appreciated by the nominees and also accentuated the fact that they were indeed President Reagans appointees. Bush Sr. continued this practice, Bill Clinton did not, but Bush Jr. has resumed it.

_Q:What do Presidents and their administrations look for in their nominees?

_A:Generally speaking, modern administrations are concerned with appointing highly qualified people in terms of education, experience, reputation, and judicial temperament. The Reagan administration also was very much concerned with the judicial philosophy of its nominees and the Justice Department did a thorough analysis of each potential judicial nominee. Since then such analyses are more likely to be undertaken in the Office of White House Counsel. Also since the breakthrough administration of President Jimmy Carter, presidents have been interested in diversifying the bench in terms of gender and ethnicity. President Reagan appointed the first woman to the Supreme Court, and the proportion of women he appointed to the lower courts was second, at that time, only to Carter's record. President Bush by the end of 1992 exceeded President Carter's historic proportion of the appointment of women. President Bill Clinton broke new ground with his unprecedented proportions of women and minorities appointed to the lower federal courts. Close to half of all his judicial appointments went to women and minorities. Thus far George W. Bush has demonstrated an interest in a diversified bench, and it appears that Bush's proportions of women and minorities may be second only to Clinton's. Finally, of course, mention must be made of politics. No one can become a federal judge without either the active backing or at least passive approval of the home state senators. I am sure this is not news to the readers of The Third Branch. It also has been important to have a favorable rating from the ABA (although Bush Jr. has eliminated the ABA from the nomination process but not of course the confirmation process). Thus, in a general way, we can say that recent administrations look to name a diversified (in terms of gender and ethnicity) group of people who are highly qualified, share the President's judicial philosophy, and have political support from senators and other important party leaders.

_Q:In choosing people to be lower federal court judges, have presidents varied greatly in the percentage of nominees who had previous judicial experience?

_A:There are some differences from administration to administration, but what I have seen is a long-term trend in the professionalization of the federal Judiciary, particularly for district court appointments. There approximately half of all appointees have judicial experience whether on a state or local court or as a federal magistrate or bankruptcy judge. Sixty years ago the proportion was closer to one-third. For appeals court appointments about half or more came to the appeals bench from a lower court (federal or state) over the past 60 years, and this has remained, with minor variations by administration, fairly constant. Of course, administrations concerned with judicial philosophy like to be able to examine a judge's judicial track record.

_Q: Has the average age of judicial nominees changed over the years?

_A:On the whole, not really. There are differences by administration, however. For federal district judges, the highest average age was for the Eisenhower appointees (52.3 years) and the youngest for the Bush Sr. appointees (48.2 years). The average age of President Franklin D. Roosevelt's district court appointees was 49.9, whereas the average age of President Bill Clinton's appointees was 49.5. For the appeals courts the average age is somewhat higher, but interestingly again the Eisenhower appointees were on the whole the oldest with an average age of 55.9 and the Bush Sr. appointees were the youngest with an average age of 48.7. The average age of FDR's appeals court appointees was 52.9. Clinton's was 51.2.

_Q:What were some of the notable features distinguishing the judicial selection process used by Clinton, Bush Sr., and Reagan?

_A:The Reagan administration made some major innovations in the selection process. It established in the Justice Department the Office of Legal Policy, which became the center of selection activity. It created a joint White House-Justice Department Judicial Selection Committee, chaired by the White House Counsel that met regularly to review the names and credentials of those being considered to fill vacancies and to assess the status and progress of individual candidates. The Committee aimed to reach consensus on whom to recommend to the President. Bush Sr. changed the Office of Legal Policy to the Office of Policy Development and took judicial selection from that office and placed it in the Attorney General's office—which was where it was before Reagan. But Bush Sr. kept the joint White House-Justice Department Committee, and under Bush Sr. the role of the White House Counsel's office expanded vis-a-vis judicial selection.

Under Clinton, the Office of Policy Development was given the responsibility of judicial selection. The joint committee continued as did the expanded role of the White House Counsel's office, particularly with appointments to the appeals courts. Now with Bush Jr. the Office of Policy Development has had its original name restored to the Office of Legal Policy with restoration of responsibility for handling judicial selection. However, it must be mentioned that the White House Counsel's office earlier this year took the lead on judicial selection. Thus, it remains to be seen whether the White House Counsels office will continue to assume the substantive work of judicial selection with the Office of Legal Policy handling the more routine bureaucratic work.

_Q:How do you assess the confirmation process in the Senate?

_A:Over the past 20 years we have seen a growing politicization of the confirmation process. What was once typically routine processing when a lower court nomination was sent to the Senate has become a considerably more partisan and ideologically acrimonious process. Of course, not every nominee has faced obstacles and delay, but a disturbing number of nominees have. This is particularly true when the Senate has been controlled by one political party and the White House by another. The last six years of the Clinton administration saw many nominees face long delays with some never receiving hearings at all. Long delays are unfair to the nominees and unfair to overburdened courts that badly need vacancies to be filled—to say nothing of the litigants who face a long wait for their day in court. With the Senate about evenly split now, this is an opportune time for Democrats and Republicans to agree to some new ground rules. For starters, all nominees should have hearings. I think it is wrong for one or more senators to prevent a nominee from having a hearing. Typically, when such obstruction has taken place no one publicly takes responsibility. No one offers reasons. For the poor nominee it is simply surreal. No way can the Senate advise and consent if a senator behind the scenes prevents a hearing from occurring. At a hearing, any objections a senator may have should be aired, and there should be ample opportunity for rebuttal. Of course no senator is under an obligation to vote to confirm. But the Senate is under a constitutional obligation to vote—and without even a hearing, the Senate is unable to fulfill its constitutional obligation. Furthermore, once a nominee has a hearing, the full Senate Judiciary Committee should vote whether or not to approve the nominee and whether or not to send the nomination to the floor of the Senate. A vote up or down by the Committee or by the full Senate is, in my view, the proper way of fulfilling the advise and consent obligation of the Senate. And when a nomination is sent to the floor of the Senate, the Majority Leader should promptly schedule a floor vote. I am not arguing that the Senate should be a rubber stamp but I do feel strongly that obstruct and delay should not replace advise and consent.