SELECTING FEDERAL JUDGES: The New, Less Partisan California Plan

The judicial branch of the federal government has grown tremendously in the last 50 years, largely because Congress has continually added new federal crimes and civil causes of action.

Today, some 600 judges sit on the federal district trial courts, and another 200 on the appellate courts. The Judicial Conference of the United States predicts that 2,350 federal judges will be needed by 2010, and 4,110 by 2020.

Unfortunately, the federal judiciary is becoming as partisan as the other two branches of government. And given the combination of the projected growth, and the fact that a significant number of sitting judges retire or leave the bench during the term of most presidencies, the politicization of the judiciary is only likely to get worse.

Federal courts are the arbiters not only of disputes between citizens, but also of disputes between citizens and their government, as well as disputes between the branches of government. Should either Republicans or Democrats manage to stack the courts to lean in their direction, we are all in deep trouble. Yet that has become the game.

Presidential candidates of both parties pledge to appoint federal judges, from the lowest to highest courts, whose views reflect the candidates' own political philosophy. When elected, the candidates must do their best to deliver. Judicial independence starts fading with the highly partisan selection process.

Presidents select judges who will conspicuously represent their philosophy. Often the chosen jurist is a candidate more noted for his political activism than legal skills, resulting in political hacks from both parties finding seats on the bench.

Moreover, notwithstanding life tenure, by the time a man or woman is appointed to the bench they are typically set in their ways. While there are exceptions, the political affiliation of a judge often determines how he or she will rule from the bench.

A federal judgeship is not what it used to be, despite pretenses to the contrary. Today, it is a relatively low paying job, from the point of view of a man or woman qualified for the job. A lawyer in private practice — particularly those most qualified for the bench — can earn three to ten times or more what he or she might as a federal judge.

Granted, no one goes to the federal bench for the money. But many refuse judicial appointments because the money is so bad, compared to their earning power in private practice.

Also, the best and brightest of the legal profession often turn down judgeships because they have no interest in going through the selection process. To become a federal judge, one must be politically active — not as a good citizen, but rather as a partisan. More people are disgusted with partisan politics than desirous of participating.

The judicial selection process is onerous. A prospective judicial candidate must fill out complex and lengthy questionnaires for the Justice Department, the White House, the American Bar Association, and the Senate. There is no guarantee that the confidential information provided will remain confidential. Indeed, more than a few nominees have been utterly humiliated when such information has been leaked for political reasons.

The confirmation process of the United States Senate, as many candidates have discovered, is an invitation for abuse. This is particularly true when there is a divided government — that is, when the political party controlling the Congress (particularly the Senate) and the White House are different.

There is no mystery why the federal courts — and the judicial selection process —have become more political. A review of the past five decades shows that the federal courts and judges have become a part of presidential politics.

In addition, during the past five decades, we have increasingly had a divided federal government. Confirmations have become pitched political battles. While the most visible are Supreme Court appointments, lower federal courts often produce similar but less media-attracting confrontations. Once again, with Senator Jeffords (I - VT) moving his desk across the isle in the Senate, we have a divided government.

As I noted in an earlier column, the Senate has long forced all Presidents to confer with Senators about judicial appointments in their state. Attorney General Robert Kennedy — who had believed his brother, as President, would appoint judges with advice and consent of the Senate, as the Constitution mandates — said he quickly learned that in truth, Senators appoint federal judges with the advice and consent of the President.

When government is divided, it is the tradition that if a state has both a Republican and a Democratic Senator, then the Senator of the same party as the President gets to exercise the "Senatorial patronage." However, occasionally (but not very often) in states that are politically divided, the tradition is broken and two Senators work out an allotment system between themselves whereby they share the judicial appointments.

The long and short of a divided government is that it can create either logjams or forced compromise — when vacancies jeopardize the operations of a local federal court. The "forced compromise" scenario usually results in finding the best candidate, rather than the politically or philosophically chosen candidate. In contrast, logjams, the product of political hardball, hurt everyone.

During the Clinton presidency, Republicans aggressively sought to block his judicial nominations. The problem became so serious, with a backlog of federal judgeships that needed to be filled, that Chief Justice Rehnquist (a Republican) publicly chided and prodded the Republican-controlled Senate for failing to act on nominations. The prodding didn't help.

Republicans sat on judicial nominations, refusing to act on them for years. Some nominees were never given hearings, and in one case, Republicans ignored a nominee for over four years and then rejected him.

Clearly, Republicans are now concerned that they not be treated as they did Democrats. In fact, this is the last matter being resolved in the transfer of leadership power. But Democrats have not indicated that they are going to play it as Republicans did.

When President Bush assumed office on January 20, there were 100 federal judgeships to be filled. Many of the judgeships were those that the Republicans had refused to fill during the Clinton years.

Just before the Senate slipped from Republican control, President Bush sent 11 names to the Senate for judicial nominations, which are now pending.

The California Senators have created a Judicial Advisory Committee to recommend nominations to fill vacancies in the four federal district courts of California. It will be comprised of four six-member subcommittees — one subcommittee for each judicial district.

Each subcommittee will have one member selected by Senator Boxer, one selected by Senator Feinstein, and one selected jointly by both Senators along with three members named by President Bush's California chairman for judicial appointments.

Each subcommittee will name three to five possible candidates for each vacancy in that subcommittee's jurisdiction. For a candidate to go forward requires a majority vote of the subcommittee. Once the selections have been made, the White House's designated chairman will review them and forward them to the Washington for final selection.

On paper this system looks good. The 24 lawyers who have been named to the four panels are distinguished and knowledgeable about the bar, and prospective candidates, in their respective parts of the state.

Moreover, given the requirement of a majority vote within each panel, candidates on the far right or left are not going to pass muster. Thus, the arrangement should produce highly qualified but moderate candidates. This is excellent.

The Judicial Advisory Committee created by California's Senators does not address nominations to the 9th Circuit United States Court of Appeals, which has jurisdiction over the states of California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam, and the Northern Mariana Islands.

Presidents traditionally do not give the same deference to Senators with their appellate court appointments. Yet Senate cooperation is necessary, or an appointee may be blocked.

For example, conspicuously absent from the first batch of nominees submitted by the new President was the nomination of Republican Representative Christopher Cox of California. The conservative congressman, a Harvard Law School honors graduate, has long been considered an almost certain Bush appointment for the 9th Circuit.

Had Cox's withdrawal been the result of a Judicial Advisory Committee, it would not have the tit-for-tat partisan reaction that this rejection is bound to evoke. Hopefully the jurisdiction of this advisory committee will be expanded.

In this column, I have only broadly highlighted the basics of a subject that needs serious attention and study. The new California plan is a small step in the right direction. Judges, practicing attorneys, those involved in the selection of judges, and persons having business with federal courts know there are serious problems with the judicial selection process and the partisan nature of that process.

A number of studies have addressed these problems. For example, a bipartisan study by the Miller Center, which filed a report in 1996, has been largely ignored. The Century Foundation commissioned a related study, which has also been basically overlooked. Both studies have recommendations that are important to the continued integrity of the federal judiciary.