Professor Compares Federal Judicial Selection To War
BY KRIS BURKS AND KIM MUELLER, Co-Chairs of Programs for the Sacramento FBA

Professor Michael Gerhardt shared his insights into the federal judicial selection process at the Federal Bar Association’s April luncheon program.

Gerhardt, a professor at William & Mary School of Law, has written extensively on the federal appointments and impeachment processes. His interest in the topic is more than academic -- he served as a special consultant to the White House General Counsel’s Office for the Confirmation of U.S. Supreme Court Justice Stephen Breyer.

Gerhardt likened the selection process for federal judges today to war. He noted that the Constitution contains the roots for conflict by setting up a potentially combative process that pits presidents and senators against one another. In addition to inviting conflict, the Constitution also allows for formal and informal accommodations, he said. Gerhardt referred to these accommodations as "norms" and postulated that hostilities arise in the process for selecting lower federal court judges when the President, senators, or nominees violate established norms or the norms themselves are in flux.

Traditional norms include the deference given by presidents to the choices of the senators for filling vacant judgeships in their respective states, partisanship, and basic procedures for vetting and processing judicial nominations, Gerhardt said.

Gerhardt identified three "warrior" presidents -- presidents who deliberately confronted the Senate in attempting to change the judicial appointment process. According to Gerhardt, Presidents Herbert Hoover and Jimmy Carter both sought to replace patronage in federal appointments with a meritocracy, and in the process, challenged senatorial preference. In both instances, the strategy served to weaken the presidents’ relations with senators from their own parties, a weakness that extended beyond the selection of judges.

Gerhardt also included President George W. Bush among the warrior presidents for his decision to do away with the American Bar Association’s input on prospective judicial nominees -- a procedure that had been in place from 1946 until the end of the Clinton Administration. After the Democrats regained control of the Senate, they responded by slowing down all pending judicial nominations to provide the ABA with the opportunity to rate the quality of the President’s nominees.

Gerhardt also addressed the emerging importance of a candidate's likely ideology as a qualification for appointment as a judge. He said that while ideology was a factor during the Reagan Administration, President Reagan tended to adhere to norms in the making of many of his judicial appointments. Gerhardt sees President Bush, however, as making ideology central to his nominations, with just one example being the nomination of Mississippi District Judge Charles Pickering to the Fifth Circuit Court of Appeals. Pickering's nomination was rejected by the Senate Judiciary Committee, on a party line vote. Gerhardt explained that, in this partisan environment, as Democrats and Republicans vie to define ideological purity as a new norm of judicial selection, each side casts its nominees as within the mainstream and those on the other side as outside of it. Gerhardt identified this fight as a battle over the mainstream of constitutional law itself. The result is a slowdown in the appointment process as a whole. For example, the time for filling vacancies has increased from 38 days during the first two years of President Carter’s term to 226 days during the last two years of President Clinton’s tenure.

As the combat appears to be escalating over judicial appointments, Gerhardt challenged his listeners to ask, in the words of Winston Churchill, "What the hell are each of the sides fighting for, and what do these contests tell us about them, and more importantly, about us?" It is a question that the federal bench and bar have an added responsibility to ponder, for while federal legal system suffers when judicial chambers sit vacant, the problem is not one to which the general public assigns any urgency.

In addition to speaking to the Sacramento FBA chapter during his visit to our region, Professor Gerhardt also participated in a symposium on judicial selection at UC Davis’ King Hall School of Law.

The FBA's next luncheon program will feature a review of key decisions from the Supreme Court’s 2002 term by McGeorge Professor Clark Kelso and UC Davis Professor Alan Brownstein. The program is scheduled for July. This annual program is a favorite of FBA members. Please contact Debbie Anderson of Downey Brand Seymour & Rohwer at 916-441-0131 to reserve a space for this event. Non-FBA members are welcome.