VivkyJackson-judicialappointment

8/13/2019 VivkyJackson-judicialappointment

1/44

Packages of Judicial Independence: The Selectionand Tenure of Article III Judges

VICKIC. JACKSON*

ABSTRACT

Selection and tenure rules are important parts of the packages of institutionaldesigns that protect the independence of judges. The appointments process is a

political one by constitutional design; it allows for a form of democratic participa-tion, through elected representatives, in the selection of federal judges. Through avariety of rulessome constitutional, others a matter of Senate or White House

practicethis process has worked in complex ways to accommodate concerns by thepolitical branches about partisan affiliation and ideology, competence, and thedemographic mix of appointees. Although most nominees to the Article III courtscontinue to be approved by overwhelming majorities in the Senate, the rancor of the

process in recent years has seemingly sharpened, leading to suggestions for changein the Senates voting rules on nominations. The political nature of the process inturn permits disputes to become contentious in ways, and through means, that couldthreaten the structures or culture of judicial independence in the Article III courts.

For these reasons, the tenure rules assume special importance in safeguardingjudicial independence. The long tradition that Article III judges are not removedfrom office based on disagreement with their legal decisions has been an importantpart of the package. A number of scholars have recently argued that the terms ofSupreme Court Justices should be limited to eighteen years. Comparative experi-ences suggest that serious levels of judicial independence can be attained throughlong, nonrenewable terms. But such a change in an established and ongoing system,with an existing package of institutional features operating in a specific constitu-

tional culture, would have ramifications elsewherefor the confirmation process,for the internal dynamics of the Court, for its relationship to the lower federalcourts, and possibly for the stability of lawthat require careful and cautiousconsideration. For example, if Supreme Court confirmations were to happen everytwo years, should the package include changes in selection procedure, perhaps torequire a supermajority vote to confirm?

Moreover, the Article III federal courts, headed by the Supreme Court, havefunctioned as the judicial anchors for the supremacy of federal law in a largecountry whose state and federal courts use many different selection systems (includ-ing elections for fairly short terms in some of the state courts) and which hasmanaged to sustain a serious commitment to the rule of law. The federal courts are,in a sense, part of an overall package that is the U.S. court system, whose

commitment to the rule of law under the Constitution has accommodated the statesfreedom to adopt different approaches to judicial selection and tenure, perhaps inpart by assuring the strong independence of the Article III federal judiciary throughsalary and tenure provisions. Careful thought is thus required before changing oneof the pillars of this ongoing system.

* Professor of Law, Georgetown University. 2007, Vicki C. Jackson. I am grateful to Sue Bloch,

Michael Gerhardt, Jim Pfander, Judith Resnik, Bob Taylor, and Mark Tushnet for helpful comments on

earlier drafts. My Research Assistants, Kate Couch, Andy Eberle, and Joe Gallagher, deserve thanks for

their cheerful and careful work. Responsibility for any errors is mine alone. This Essay was written as a

background paper for and presented at Fair and Independent Courts: A Conference on the State of the

Judiciary, September 2006, and the research on which it is based was completed in the summer of

2006.

965


2/44

TABLE OFCONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 966

A. CONSTITUTIONAL FOUNDATIONS . . . . . . . . . . . . . . . . . . . . . . . . 969B. CONSTITUTIONAL CHOICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971

C. NON-ARTICLE III TRIBUNALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 972

I. ARTICLEIII JUDGES SELECTION ANDINDEPENDENCE . . . . . . . . . . . . 974

A. RECESS APPOINTMENTS AND PRESIDENTIAL POWER. . . . . . . . . . . . 974

B. SELECTION CRITERIA: IDEOLOGY, PARTISANSHIP, AND

EXCELLENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977

C. PUBLIC HEARINGS AND JUDICIAL PRECOMMITMENT . . . . . . . . . . . 982

D. CAREERIST VS. INDEPENDENT LOWER COURT JUDGES? . . . . . . . . . 983

E. PARTISAN RANCOR AND FRICTION . . . . . . . . . . . . . . . . . . . . . . . 985

II. ARTICLEIII AND JUDICIALTENURE . . . . . . . . . . . . . . . . . . . . . . . . 986

A. LIFE TENURE AND IMPEACHMENT . . . . . . . . . . . . . . . . . . . . . . . 987

B. ALTERNATIVE READING OFDURING GOOD BEHAVIOUR? . . . . . . . 990

C. LEGISLATIVE ABOLITION OF COURTS?; OTHER CONGRESSIONAL

POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991

D. RETIREMENT, DISABILITY, AND DISCIPLINE . . . . . . . . . . . . . . . . . 993

E. SALARY CONCERNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 996

III. INSTITUTIONAL DESIGN ANDINSTITUTIONALCHANGE: REFORM

PROPOSALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 997

A. CHANGING THE SENATES VOTING RULES . . . . . . . . . . . . . . . . . . 997B. TERM LIMITS/MANDATORY RETIREMENT . . . . . . . . . . . . . . . . . . . 1000

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006

APPENDIXI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009

APPENDIXII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028

INTRODUCTION

Rules about selection, tenure, and removal are parts of the packages ofprovisions, or institutional designs, that influence degrees and types of judicial

independence and public accountability. The United States Supreme Court

Justices, and the judges who serve in the federal district courts and circuit courts

966 [Vol. 95:965THEGEORGETOWNLAWJOURNAL


3/44

of appeals, are all Article III judges, appointed and holding office pursuant to

Article III of the Constitution. Nominated by the President and confirmed by the

Senate, they hold office during good Behaviour and their salary cannot be

reduced once in office.

1

On conventional understandings, they can be removedfrom office only by impeachment in the House and conviction in the Senate, by

a two-thirds vote, for Treason, Bribery, or other high Crimes and Misdemean-

ors.2 Article III judges are not the only federally appointed judges but function

as part of a much larger federal system of judging and justice that includes

non-Article III federal judges and the state court judges. This Essay focuses on

how the selection, tenure, and removal provisions for Article III judges relate to

desirable levels of judicial independence.

There are different meanings and degrees of judicial independence, different

forms of accountability, and different balances between independence and

judicial accountability. While all who act as judges are expected to exerciseindependent judgment, in the sense of being impartial as between the parties

and not having a personal stake in the dispute,3 there is disagreement about how

independent from the public, or from elected political branches, judges should

be in interpreting and applying the law. There is, moreover, a range of account-

ability mechanisms, both within the federal judiciary (for example, by appeal or

internal discipline) and by the political branches that appoint federal Article III

judges, fund the courts, and enact the laws (including those concerning federal

courts jurisdiction). There are ranges of political responses to unpopular deci-

sions (including constitutional amendments) that may be more, or less, consis-tent with the decisional independence of judges. Judges who must stand for

frequent election or reappointment have more reason to be concerned that

making an unpopular decision will harm their livelihood than do judges ap-

pointed under Article III. Indeed, the decisional independence promoted by the

tenure and salary protections of Article III is often admired, even as the

consequences of this independence in checking other branches of government

can be highly contentious.

The selection and tenure rules for Article III judges affect both the decisional

independence of individual judges and the institutional independence of thejudiciary as a whole.4 But these selection and tenure rules do not function in

isolation from other legal rules, including those governing the courts jurisdic-

tion, when it is exercised, who can invoke it, who can change it;5 the finality of

1. U.S. CONST. art. III, 1.

2. U.S. CONST. art. II, 4.

3. See, for example,Tumey v. Ohio, 273 U.S. 510 (1927) and cases cited infranote 30.

4. Cf. John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence,72 S. CAL. L. REV. 353 (1999) (distinguishing independence of individual judges from dependence of

the judiciary as an institutional matter on legislative decisionse.g., about jurisdiction and funding).

5. For an introduction to the vast literature on this subject, see generally RICHARD H. FALLON, JR. ET

AL., HART& WECHSLERS THEFEDERALCOURTS AND THEFEDERALSYSTEM(5th ed. 2003).

2007] 967PACKAGES OFJUDICIALINDEPENDENCE


4/44

the courts judgments, who they bind, and how judgments are enforced;6

judges salaries, court funding and control of administration, hiring and location

of work;7 restrictions on judges nonjudicial speech or activities;8 and availabil-

ity of pensions for disability or retirement.

9

Legal structures alone, moreover,do not necessarily result in judicial independence; they are only part of the

story. Some political scientists, for example, argue that effective competition in

electoral politics is most keenly associated with independent courts.10 Important

as well are the professional norms of lawyers and judges,11 popular conceptions

6. On the importance of finality, see, for example, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211

(1995) (holding unconstitutional a federal statute that in effect permitted one side of a private litigation

to re-open final judgments entered by the Article III courts); on enforceability, see, for example, Martin

v. Hunters Lessee, 14 U.S. (1 Wheat.) 304, 362 (1816) (directly affirming the judgment of the state trial

court rather than remanding to the state appellate court which had previously challenged the SupremeCourts authority). On the bindingness of constitutional decisions, see Vicki Jackson, The Binding

Effect of Constitutional Adjudication: A View from the United States,in LINTERPRETATIONCONSTITUTION-

NELLE246 (Ferdinand Melin-Soucramanien ed., 2005).

7. See, e.g., Judith Resnik & Lane Dilg, Responding to a Democratic Deficit: Limiting the Powers

and the Term of the Chief Justice of the United States, 154 U. PA. L. REV. 1575, 158088 & n.17, 1599

(2006) (describing Chief Justice Tafts role in establishing better control over the administration of the

federal courts through, inter alia, steps that led to the Judicial Conference of the United States); cf.

DONALD P. KOMMERS, JUDICIAL POLITICS IN WEST GERMANY 8385 (1976) (describing the successful

efforts of the German Constitutional Court in the 1950s to obtain control over its own budget and

administration, including hiring authority over its law clerks); Mark Ramseyer, The Puzzling (In)Depen-

dence of Courts: A Comparative Approach, 23 J. LEGAL STUD. 721, 72528 (1994) (describing political

control of Japanese judges through job assignments, including to less favorable geographic locations).8. See, e.g., CODE OFCONDUCT FORUNITED STATESJUDGES Canon 3(A)(6) (2000) (A judge should avoid

public comment on the merits of a pending or impending action . . . .);id. Canon 5 (A judge should regulate

extra-judicial activities to minimize the risk of conflict with judicial duties.); see also5 U.S.C. app. 501,

502 (2002) (limiting outside income and prohibiting many activities that could generate outside income);

Heather M. Clark, Note,The Supreme Courts Indecent Proposal: Repealing the Honoraria Prohibition of the

Ethics in Government Act of 1978, 87 CORNELL L. REV. 1475 (2002) (discussing the honoraria ban under the

Ethics Reform Act as it applies to federal judges); ABA MODEL CODE OFJUDICIAL CONDUCT Canon 3(B)(9)

(2004) (A judge shall not, while a proceeding is pending or impending in any court, make any public

comment that might reasonably be expected to affect its outcome or impair its fairness . . . .); cf. Robert

Sharlet,Chief Justice as Judicial Politician, 2 E. EUR. CONST. REV. 32 (Spring 1993) (describing the difficulties

of the first Russian Constitutional Court that arose, in part, from the extrajudicial speeches and activities of its

first Chief Justice).But cf.Republican Party of Minn. v. White, 536 U.S. 765 (2002) (holding unconstitutional,under the First Amendment, the states announce rule, which generally prohibited a candidate for elected

judicial office from expressing views on contested legal issues which might come before the court on which the

candidate sought to serve).

9. For a study of the impact of changes in the availability and rules for federal pensions on the

retirement of Supreme Court justices, see ARTEMUS WARD, DECIDING TO LEAVE: THE POLITICS OF

RETIREMENT FROM THEUNITEDSTATESSUPREME COURT1619, 69210 (2003).

10. See, e.g., Ramseyer,supranote 7, at 722; Matthew C. Stephenson, When the Devil Turns. . .:

The Political Foundation of Independent Judicial Review, 32 J. LEGAL. STUD. 59, 7784 (2003). Others

suggest that economic development may be a precondition, rather than a result, of independent

judiciaries. See, e.g., Daniel Klerman, Legal Infrastructure, Judicial Independence and Economic

Development (Univ. of S. Cal. Ctr. in Law, Econ. & Org. Research Paper Series, Paper No. C06-1),

available athttp://ssrn.com/abstract

877490.11. SeeABA MODELCODE OFJUDICIAL CONDUCTCanon 3 (2004) (requiring judicial impartiality). For

a somewhat idealized version of what those aspirations were, see ANTHONY KRONMAN, THE LOST

LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION11621 (1993) (describing an ideal of how judges

decide cases).



5/44

about law and the political culture,12 and the capacities of all branches of

government for self-restraint.13 But it seems plausible to assume, at least for

present purposes, that selection and tenure rules play some role in supporting

commitments to the independence of judging and the rule of law.Current debates question whether the selection process for Article III judges

allows too much room for political partisanship and consideration of judges

ideology, and whether the tenure rules promote too much of, or the wrong kinds

of, judicial independence. These debates raise many questions. What is it that

federal judges should be independent of? What is it that they should be

independent to do? Do the range and substantive nature of the courts cases

affect the forms and degrees of accountability most compatible with appropriate

independence? How might the selection process affect judges independence

from improper influence or to perform their responsibilities under law? How do

ideology and partisanship relate to an independent judiciary and our aspirationsfor what it should accomplish? How do existing tenure rules affect both kinds of

judicial independence? Although these are too many large questions for a single

paper, a brief look at the history and structure of the most directly relevant

constitutional provisions may help set parameters for further analysis.

A. CONSTITUTIONAL FOUNDATIONS

In a sense, the question of what Article III judges were to be independent

from is more readily answered. Judges were to be independent of popular

passions and certain kinds of pressures from other branches of the government.These were the purposes of the provisions for life tenure, the high standard for

removal by impeachment, and the clause that salaries cannot be diminished

while a judge is in office. The harder question is what were judges to be

independent to do? Some answers are: they were to be independent to judge

according to law; they were to have the independence to interpret the law in

order to render judgment; they were to protect minorities from popular passions

that would violate their legal rights; and they were to check the other branches

of government when they departed from the fundamental commitments set forth

in the Constitution.14

12. See, e.g., Ramseyer,supra note 7, at 73031 (arguing that the hands off attitude of politicians

to U.S. judges is not the result of constitutional provisions but of a political culture that does not

approve of efforts to penalize judges for their decisions).

13. On judicial self-restraint, see John A. Ferejohn & Larry D. Kramer, Independent Judges,

Dependent Judiciary: Institutionalizing Judicial Restraint, 77 N.Y.U. L. REV. 962 (2002).

14. SeeTHEFEDERALISTNO. 78, at 226, 22729, 23132 (Alexander Hamilton) (Roy P. Fairfield ed.,

1981) (arguing that the tenure provisions of Article III will help secure a steady, upright, and impartial

administration of the laws; prevent encroachments and oppressions of the representative body;

enable the courts to enforce, as is peculiarly essential in a limited Constitution, the Constitutionslimits on legislative authority, such as that it shall pass no . . . ex-post-facto laws and to ascertain

[the] meaning of the Constitution and other laws, because the interpretation of the laws is the proper

and peculiar province of the courts; and help guard the Constitution and the rights of individuals from

the effects of those ill humors, which . . . sometimes disseminate among the people themselves, and



6/44

The proponents of the Constitution recognized that there were risks of

according judges this kind of independence (as did their opponents). In Federal-

ist No. 79, Hamilton acknowledged suggestions that there be a provision to

remove judges for inability but concluded that such a provision would eithernot be practiced upon or would be more liable to abuse than calculated to

answer any good purpose.15 No human institution can avoid some defects, his

comment suggests, and a provision for removal other than by impeachment

would pose too great a risk of misuse, even if its absence allowed some lacking

in ability to remain on the bench. He likewise rejected suggestions that a

mandatory retirement age be adopted, as existed in New York.16 Public account-

ability of the courts was to be achieved in other waysin the political selection

of learned lawyers with integrity, through Congresss passage of laws (including

those controlling the federal courts jurisdiction), through the possibility of

constitutional amendment, and, for judicial malconduct, through impeach-ment proceedings to remove.17

So, in a classic example of separated powers and checks and balances, the

Constitution distributes authority with respect to the establishment and staffing

of the courts between the Congress and the President,18 and specifies that it is

the courts which exercise the judicial Power of the United States.19 Article III

which . . . have a tendency . . . to occasion dangerous innovations in the government, and serious

oppressions of the minor party in the community). Hamilton went on to argue that judicial indepen-

dence was important not only with respect to infractions of the Constitution but also as an essentialsafeguard against the effects of occasional ill humors in the society, which may result in injury of the

private rights of particular classes of citizens by unjust and partial laws. Id. at 231. In such cases, the

firmness of the judicial magistracy will mitigat[e] the severity and confin[e] the operation of such

law. Further, he wrote, knowing that the independent courts are there would operate[] as a check upon

the legislative body in enacting laws.Id. at 23132.

15. SeeTHEFEDERALISTNO. 79, at 234, 235 (Alexander Hamilton) (Roy P. Fairfield ed., 1981).

16. Id. In this essay, Hamilton seemed to distinguish between insanity, which he described as a

clear disqualification, and declining abilities through age. See id. For discussion of disabled judges,

seeinfraPart II.D.

17. SeeTHEFEDERALISTNO. 79, at 234 (Alexander Hamilton) (Roy P. Fairfield ed., 1981).

18. Article I of the Constitution provides that Congress shall have Power . . . To constitute Tribu-

nals inferior to the supreme Court, a provision that should be read together with Article IIIs referenceto one Supreme Court and such inferior Courts as the Congress may from time to time ordain and

establish. Article I, Section 8 also gives Congress the power to make all laws which are necessary

and proper to carry into effect the powers of other branches. Article II provides generally for

appointments of federal officers, including federal judges, and specifically gives Congress the authority

to provide for a range of appointment methods for inferior Officers of the United States. Thus, it

states that the President shall nominate, and by and with the Advice and Consent of the Senate, shall

appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other

Officers of the United States, whose Appointments are not herein otherwise provided for, and which

shall be established by Law. Article II also authorizes the Congress by law, to vest the Appointment

of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the

Heads of Departments. Whether the judges of the Article III inferior courts could be treated as

inferior officers so as to permit their appointment, for example, by other Article III Courts of Lawhas been discussed in the academic literature. See Appendix I, at n.16. The practice, however, has

invariably been that the President nominates and the Senate confirms all Article III judges.

19. Article III provides that [t]he judicial Power of the United States, shall be vested in one

supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.



7/44

of the Constitution further provides that the judges of both the Supreme and

inferior courts shall hold office during good Behaviour and specifies that their

compensation shall not be diminished during their Continuance in Office. The

need to secure the independence of the federal judiciary was a point ofconsensus in the Constitutional Convention. How to select those judges was,

however, very much in controversy.20 Indeed, for quite some time over the long

Convention held in Philadelphia in the summer of 1787, it appeared that the

Senate would have exclusive authority to appoint judges. On June 13, members

of the Convention adopted a proposal by James Madisonone of its most

influential membersthat the Senate select judges. In July, a proposal to give

the power of appointment exclusively to the President was voted down. Until

rather late in the drafting process, the power of appointment was vested

exclusively in the Senate, out of fear of giving the President the dangerous

prerogative of appointing the judiciary.21 Not until September 7 was thepresent rule agreed to; the Constitution was signed on September 17, 1787, and

ultimately ratified by the states.22

B. CONSTITUTIONAL CHOICES

The selection mechanisms contemplated by the Constitution represent a

distinctive set of choices. The Constitution does not, for example, mandate any

self-replicating or professionally controlled selection process. Article III judges

do not select, nominate, confirm, or appoint other Article III judges and have no

formal consultative or advisory role.23

Rather, the process of judicial nomina-tion and confirmation is allocated to two other branches of government. More-

over, unlike in some other systems, neither the President nor the Senate has

authorityacting on their ownto select any members of the permanent

Article III judiciary.24 Instead, the two political institutions of government must

work together, in a system intended to impose significant checks on the author-

20. SeeFALLONJR. ET AL.,supranote 5, at 9.

21. SHELDONGOLDMAN, PICKING FEDERALJUDGES: LOWERCOURTSELECTION FROMROOSEVELTTHROUGH

REAGAN 56 (1997) (quoting George Mason). I am indebted to Professor Goldmans book, from whichthis description generally is drawn, and to his regular articles on federal judicial selection, which have

been very helpful in preparing this Essay.

22. Id. at 6.

23. See supra note 18.Compare, e.g., COST. [CONSTITUTION] art. 135 (Italy) (providing that one-third

of the judges of Italys Constitutional Court are chosen by the ordinary and administrative supreme

courts (quoting a translation, available at International Constitutional Law, ItalyConstitution, http://

www.oefre.unibe.ch/law/icl/it00000_.html (last visited Jan. 3, 2007))). Under the United Kingdoms

Constitutional Reform Act of 2005, which provides for the establishment of a Supreme Court, a judicial

selection commission will recommend names to the Prime Minister, and the Commission is required to

consult with senior judges (who are not on the Commission and not candidates for appointment)

before making its recommendation.See Constitutional Reform Act, 2005, c. 4, 23, 26, 27 (Eng.); see

also Explanatory Notes to Constitutional Reform Act, 2005, c. 4 (Eng.), available at http://www.opsi.gov.uk/acts/en2005/2005en04.htm (U.K. Office of Public Sector Information).

24. Compare, e.g., GRUNDGESETZ [GG] [BASICLAW] art. 94 (F.R.G.) (providing that each of the two

houses of the German national legislature is to select one-half of the judges on the Constitutional

Court); 1958 CONST. art. 56 (Fr.) (providing that one-third of the judges of the French Conseil



8/44


9/44

selected in a variety of ways; they are often subject to limited-term appoint-

ments; and they may be evaluated for re-appointment or continued fitness.29

All judges are supposed to be impartial and fair-minded in judgment for

reasons identified with the Due Process Clause and which may also inhere in theconcept of judging itself.30 Article III judges, however, have added institutional

protections, designed to secure a greater degree of independence from political,

social, or economic pressures than is required by the Due Process Clause, a

degree of independence often associated with the federal courts obligation to

serve as a check on the actions of the other branches of the federal government.

In contrast to the statutory federal judges, for active Article III judges there are

no minimal qualifications, no term limits, no regular evaluations of health or of

whether the judge should continue in office.31 Appointment of an Article III

judge is an investment in and gamble on the future, for she may sit for thirty or

more years. And it is Article III judges who, in the end, have jurisdiction toreview questions of constitutional and other federal lawfrom cases in the state

courts as well as the non-Article III federal courtsand to say what the law

is.32 For this reason, the balance of this Essay will focus on Article III judges,

where the stakes in the initial appointment decision are the highest, and will

consider in turn their selection, their tenure, and recent reform proposals.

29. See generally Appendix I. Professor Judith Resnik uses the term statutory judges to refer to the

non-Article III federal judiciary.See Judith Resnik,Trial as Error, Jurisdiction as Injury: Transforming

the Meaning of Article III, 113 HARV. L. REV. 924, 951 (2000); Judith Resnik, Uncle Sam Modernizeshis Justice: Inventing the Federal District Courts of the Twentieth Century for the District of

Columbia and the Nation, 90 GEO. L.J. 607, 614 (2002) [hereinafter Resnik,Uncle Sam Modernizes].

30. On the Due Process Clause and impartiality, see, for example,Aetna Life Ins. Co. v. Lavoie, 475

U.S. 813 (1986); Connally v. Georgia, 429 U.S. 245 (1977); Taylor v. Hayes, 418 U.S. 488, 50103

(1974); Gibson v. Berryhill, 411 U.S. 564, 57859 (1973); Johnson v. Mississippi, 403 U.S. 212, 216

(1971);Tumey v. Ohio, 273 U.S. 510 (1927). But the impartiality required by the Due Process Clause

does not require Article III tenure and salary guarantees, or even, necessarily, a fixed tenure of office.

See, e.g., Weiss v. United States, 510 U.S. 163, 17980 (1994) (holding that the absence of fixed tenure

for military judges does not violate the Due Process Clause). For a somewhat controversial application

of the idea of independence as a concept inherent in judging, see Provincial Court Judges Assn v.

Manitoba, [1997] 3 S.C.R. 3 (Can.) (holding that judicial independence is an unwritten constitutional

norm, applicable to all courts, which requires that an independent body be established to decide on anyproposals to reduce provincial judges salaries because direct action by the legislature could threaten the

judges needed independence).

31. In the 1990s, a federal anti-nepotism statute, derived from older statutes barring judges from

appointing their relatives to positions in the court, was raised as a barrier to the Presidents nomination

and Senate confirmation to an Article III judgeship of a sitting judges relative (William Fletcher, now a

Ninth Circuit judge, and the son of Betty Fletcher, also at the time on the Ninth Circuit). In the wake of

controversy over this proposed interpretation, the statute was amended and its prohibitions expanded.

See 28 U.S.C. 458(b) (2000); see also 28 U.S.C.A. 458(b) (West 2006) and accompanying

annotations; Michael E. Solimine, Nepotism in the Federal Judiciary, 71 U. CIN. L. REV. 563, 56567

(2003). The constitutionality of this prohibition, barring presidential nomination and Senate confirma-

tion of one who is a relative of an Article III judge sitting on the same court, has not been tested, nor

has the constitutionality of the political diversity requirement for the Article III judges on the Court ofInternational Trade. See 28 U.S.C. 251(a) (2000) (limiting the number of judges from the same

political party). For further discussion, including of annual caseload certification requirements to

remain in senior status under 28 U.S.C. 371 (2000), see Appendix I, at nn.5, 6, 13.

32. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).



10/44

I. ARTICLEIII JUDGES SELECTION ANDINDEPENDENCE

Although the strong tenure protections generally provided to Article III

judges would seem to go a long way toward insuring independence (both from

political pressure and to judge impartially and according to the judges bestunderstanding of the law), the number of highly contentious disputes in the

nominations process, especially over lower court judges, has raised concerns in

recent years about that processs effects on judicial independence.33 Notwithstand-

ing strong tenure protections once appointed, how might the selection process

impair desirable judicial independence? Here are some possibilities. Precommit-

ments by nominees of how they would rule (for example, on large constitutional

controversies) could compromise the appearance and actuality of impartiality

and a nominees commitment to fair judicial process in the resolution of cases.

Even without precommitments, a highly ideological or partisan selection pro-cess might convey the expectation that decisions should be in accord with

political ideology, affecting the norms of judging according to law and also

adversely affecting public views of the courts legitimacy; courts that lack

public trust may be less able to function independently of popular passions.

Moreover, an unpleasant selection process might discourage the best qualified

from serving, yielding judges not competent enough to use their independence

to judge according to law, and might also lead to escalations of political battles

that affect judicial independence in other ways. Some also fear that a trend

toward choosing Supreme Court Justices from lower courts could affect the

decisional independence of lower court judges. Finally, recess appointments

allow temporary judges to hear the most serious matters, including criminal

trials, with short tenure and greater incentives to worry about the political

branches evaluation of their actions. I discuss each of these points below.

A. RECESS APPOINTMENTS AND PRESIDENTIAL POWER

A recess appointment, according to Article II of the Constitution, is made by

the President alone, during a Senate recess, and lasts only until the end of the

next session of the Senate.34 For a judge to hold such a temporary position

33. See Sheldon Goldman, Judicial Confirmation Wars: Ideology and the Battle for the Federal

Courts, 3 9 U. RICH. L . REV. 871, 871 (2005) [hereinafter Goldman, Judicial Confirmation Wars]

(analyzing the highly contentious battles over the confirmation of federal court judges in the prior

two decades); Sheldon Goldman et al., W. Bushs Judiciary: The First Term Record, 88 JUDICATURE 244,

262 (2005) [hereinafter Goldman et al., W. Bushs Judiciary] (noting claims, inter alia, that the Senate

Judiciary Committee has ignored blue slip objections, violated Rule IV concerning minority right to

continue debate, and ignored informal rules concerning the scheduling of nomination hearings that

[v]iewed collectively . . . all work to lessen the ability of the minority party in the Senate to exercise

an effective check on the confirmation process).

34. Recess appointments are authorized by Article II, Section 2 of the Constitution, which states:The President shall have Power to fill up all Vacancies that may happen during the Recess of the

Senate, by granting Commissions which shall expire at the End of their next Session. The language of

this provision raises several constitutional questions, including (1) whether the recess appointment

power is available only for new vacancies which themselves happen for the first time during a recess,



11/44

seems in deep tension with the Article III requirement that judges exercising the

judicial power of the United States hold office indefinitely during good

Behaviour. But many Presidents, including George Washington, have on occa-

sion made recess appointments of judges to the Article III courts.

35

PresidentEisenhower made three recess appointments to the Supreme CourtChief

Justice Earl Warren and Justices William J. Brennan and Potter Stewart; each

appointment was made shortly before national elections and each appointee was

subsequently confirmed. Recess appointments have also been made to the lower

federal courts. Thurgood Marshall, later successfully nominated to the Supreme

Court as its first African American Justice, received a recess appointment to the

U.S. Court of Appeals for the Second Circuit in 1961 because his confirmation

at that time would have been opposed by southern senators.36

A judge with a recess appointment, not yet confirmed by the Senate, has no

job security beyond the next Congress, often only a few months. As a result, shemay be tempted to look over her shoulder at the President (who must

re-nominate her to a permanent position), the Senate (which must decide

whether to confirm her), or both in carrying out her duties. Yet to interpret the

Article II recess appointment power to apply only to executive branch

positions and not Article III judgeships would be inconsistent with past practice.

The constitutionality of recess appointments of Article III judges has not been

decided by the Supreme Court. Criminal defendants tried before recess-

appointed judges have argued that it is inconsistent with the independence

contemplated by Article III tenure and salary protections to permit a temporaryjudge, hoping for nomination and confirmation to a permanent position, to

exercise important judicial responsibility in the interim. Thus far, such claims

and (2) whether any adjournment, even a brief intrasession one, counts as a recess for constitutional

purposes. The Department of Justice has consistently taken the position that the recess appointment

power is notlimited only to vacancies that first arise during a recess, but has taken different positions

over time on whether the recess appointment power may be exercised only during intersession recesses,or are available during longer, or even shorter, intrasession adjournments or recesses. For helpful

discussion of these complex constitutional questions, see Edward A. Hartnett, Recess Appointments of

Article III Judges: Three Constitutional Questions, 26 CARDOZO L. REV. 377 (2005), from which my

account is largely drawn; see also Michael Herz, Abandoning Recess Appointments?: A Comment on

Hartnett (and Others), 26 CARDOZO L. REV. 443 (2005). Because of the risks that recess appointments

could undermine the Senates advice and consent role (if, for example, given to a person denied

confirmation by the Senate and with respect to a longstanding vacancy), Congress has by legislation

prohibited, with some important exceptions, paying a salary to recess appointees appointed to fill

vacancies that existed for more than thirty days prior to the recess for positions where the Senates

advice and consent is required.See 5 U.S.C. 5503 (2000).

35. SeeLOUIS FISHER, CONG. RESEARCHSERV., FEDERALRECESSJUDGES 3 (Order Code RS22039, Feb.

2, 2005) (noting a 1983 Department of Justice report listing 309 individuals who had received recessappointments to Article III courts); Sheldon Goldman, Judicial Confirmation Crisis?, JURIST, Apr. 15,

2004, http://jurist.law.pitt.edu/forum/symposium-jc/goldman.php (asserting that over three-hundred fed-

eral judges received initial recess appointments since the Constitution was established).

36. SeeJUANWILLIAMS, THURGOODMARSHALL: AMERICAN REVOLUTIONARY 291, 294 (1998).



12/44

have been largely rejected in the lower courts.37

Presidential restraint, reinforced by the Senates resistance and, perhaps, by

the pragmatic reluctance of most lawyers to abandon existing positions for a

temporary judgeship,

38

has helped limit the number of recess appointments toArticle III courts. Given modern practices (including public hearings on Su-

preme Court nominees), the political costs of a recess appointment to the Court

would be very high. Indeed, in 1960 (after President Eisenhowers recess

appointments to the Court), a Senate resolution was adopted providing that

recess appointments to the Court should not occur, except under unusual and

urgent circumstances, to avoid interference with the Senates advice and

consent function and any appearance of compromise of judicial independence

during the period of the interim appointment.39 From 1980 until 2000, no recess

appointments to Article III courts were made.40 President Clintons recess

appointment in 2000 of the first African-American judge on the U.S. Court ofAppeals for the Fourth Circuit, followed by President Bushs two recess appoint-

ments in early 2004 (one of them during a short intrasession recess and thus

particularly controversial), have made clear that recess appointments to the

lower courts remain a political possibility41though subject also to political

37. Although the challenges were ultimately rejected in the two courts of appeals which considered

them on appeal from criminal convictions, one panel of the Ninth Circuit accepted the argument that

recess appointees could not exercise Article III power, but it was overruled by a larger panel of judges

sitting en banc. SeeUnited States v. Woodley, 726 F.2d 1328 (9th Cir. 1983) (finding that the exerciseof judicial power by recess appointee is inconsistent with the Constitution and its requirements for the

independence of Article III judges), vacated, 751 F.2d 1008 (9th Cir. 1985) (en banc); United States v.

Allocco, 305 F. 2d 704, 709 (2d Cir. 1962) (holding that Article II permits the President to appoint

Justices of the Supreme Court and judges of the inferior courts to serve for a limited period, and

accordingly that such judicial officers may exercise the power granted to Article III courts). A third

federal court of appeals likewise rejected constitutional challenges to the intrasession recess appoint-

ment of Judge Pryor in the Eleventh Circuit. Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004)

(en banc) (noting, inter alia, that plenty of judges in this country (for example, state judges) . . . do not

have all the protection of Article III judges; yet these courts are not seen to be inherently unfair, nor do

they deny litigants due process on that account), cert. denied, 544 U.S. 942 (2005). Justice Stevens

issued an opinion respecting the denial of certiorari, indicating that the constitutional questions were

significant and emphasizing that denial of review was not a ruling on the merits. Evans, 544 U.S. at94243.

38. Cf., e.g., Hartnett,supranote 34, at 429 (reporting that Justice Holmes was clear that he wanted

to remain on the state court bench until confirmed).

39. SeeFISHER,supranote 35, at 4 (quoting from the 1960 Senate resolution).

40. Id.at 6.

41. On President Clintons recess appointment of Roger Gregory to the Fourth Circuit after the

Senate failed to hold hearings on his nomination, see id.; see also President Clinton Appoints Roger

Gregory to the United States Court of Appeals for the Fourth Circuit, http://clinton4.nara.gov/WH/new/

html/Fri_Dec_29_135529_2000.html (last visited Jan. 3, 2007). On President Bushs recess appoint-

ments, in the face of Democratic opposition to the candidates, of Charles W. Pickering to the Fifth

Circuit and William H. Pryor to the Eleventh Circuit, see F ISHER,supranote 35, at 6. Because the recess

power was evidently intended for times when the Senates recess prevented confirmation and effectivegovernment required the vacancy to be filled, recess appointments during short intrasession breaks, as

in Judge Pryors case, are regarded as more problematic than others. Judge Pickering resigned his

office, and, after serving as a recess appointee, Judge Pryor was eventually confirmed. See Neil A.

Lewis,Bush Tries Again on Court Choices Stalled in Senate, N.Y. TIMES, Dec. 24, 2004, at A6; Sheryl



13/44

constraints.42 Because a recess-appointed judge is dependent on both Executive

renomination and Senate confirmation to stay in office, such appointments raise

evident concerns for the independence of the interim appointee.43

B. SELECTION CRITERIA: IDEOLOGY, PARTISANSHIP, AND EXCELLENCE

The Constitution specifies no qualifications for appointment as an Article III

judge, though surrounding historical materials suggest an expectation that only

highly competent lawyers should be appointed.44 But, competence is not incon-

sistent with partisan affiliation or particular ideologies,45 considerations which

have long played a role both in the selection of nominees by Presidents and in

the Senates willingness to confirm. Ideological rejectionsthat is, rejections

motivated by disagreement with the nominees or the administrations policies

or legal viewsgo back to the first administration of President Washington and

the Senates rejection of his choice for Chief Justice (John Rutledge). In 1835,

soon-to-be Chief Justice Taneys nomination to the Court was initially blocked

because of partisan, ideological disputes of the Jacksonian period; Judge John

Parkers nomination in 1930 failed because of opposition from civil rights and

labor groups; and the nomination of Abe Fortas as Chief Justice in 1968 failed,

in part, because of political opposition to the decisions of the Warren Court46

Gay Stolberg,Man in the News: A Different TimpanistWilliam Holcombe Pryor, Jr. , N.Y. TIMES, June

10, 2005, at A14.42. Democratic Senators responded to the 2004 appointments by threats to hold up votes on a

number of other judicial nominees; this controversy was resolved, at least temporarily, by an agreement

that no further recess appointments in the 108th Congress would be made and that twenty-five of the

Presidents judicial nominees would have floor votes. See FISHER, supra note 35, at 6; Neil A Lewis,

Deal Ends Impasse Over Judicial Nominees, N.Y. TIMES, May 19, 2004, at A19.

43. For a recent argument that the Supreme Court should find recess appointments to Article III

courts unconstitutional, see Steve M. Peyser, Recess Appointments to the Federal Judiciary: An

Unconstitutional Transformation of Senate Advice and Consent, 8 U. PA. J. CONST. L. 61 (2006). But cf.

Goldman, Judicial Confirmation Wars, supra note 33, at 901 (proposing that Presidents whose

nominees do not receive a hearing in the Senate use recess appointments as a means over time to push

the Senate to hold hearings on nominees).

44. See THE FEDERALISTNO. 76, at 416, 417 (Alexander Hamilton) (E.H. Scott ed., 2002) (arguingthat the appointment procedures of Article II, Section 2, for presidential nomination and Senate

confirmation, are designed to secure the selection of well-qualified persons of intrinsic merit and that

the Senate confirmation requirement would exercise an excellent check on presidential favoritism

and prevent the nomination of unfit characters); THEFEDERALISTNO. 78, at 233 (Alexander Hamilton)

(Roy P. Fairfield ed., 1981) ([T]here can be but few men in the society who will have sufficient skill in

the laws to qualify them for the stations of judges, and fewer still who unite the requisite integrity

with the requisite knowledge.). These passages can be understood to express both hope for appoint-

ment of the most qualified and confidence that the check of Senate confirmation would discourage

nomination and prevent confirmation of those unfit for office.

45. By ideology, one could mean a set of substantive results attributable to the Constitution and

laws, or one could be referring to a methodology of interpretation, associated with some, but not

necessarily all, of those outcomes. Inquiries as to interpretive methodology, though sometimes used as aproxy for substantive ideology, may pose fewer risks of creating the appearance of seeking, or giving,

assurances or precommitments, because its application may be uncertain in particular cases.

46. See HENRY J. ABRAHAM, JUSTICES, PRESIDENTS, ANDSENATORS7475, 3031, 219 (rev. ed. 1999).

Of course, ideological opposition is not always successful, and a number of nominees have been



14/44

all well before the Bork nomination.

Over time, the relative roles of merit, ideology, political patronage, geogra-

phy, other demographic factors, or friendship ties have varied, as has the

influence of Senators in the selection process. Nominees have tended to be ofthe same political party as the President who nominates them, though a small

percentage are not.47 Presidential administrations have varied in the rigor with

which they have pursued policy agendas in appointments, especially on the

lower courts;48 some scholarship suggests that a necessary prerequisite for

doing so effectively has been a powerful coordinating role from the White

House Counsels office.49 For many years the ABA had been given names of

possible nominees before they were announced for professional evaluation, but

this practice was ended in 2001.50 In the last two decades, in a larger political

setting in which several politically polarizing issues are linked to court deci-

sions, confirmation battles informed by ideological divides have seemed moreintense,51 accompanied by contentious resort to senatorial prerogatives in chal-

lenging presidential agendas.52 The role (or apparent role) of ideology may have

been enhanced by interest groups (some of which use judicial nominations as

rallying tools) and by media coverage that tends to focus on conflict and thus on

political or ideological differences in the nomination process.53

unsuccessfully opposed on ideological grounds, including, for example, Louis Brandeis and Charles

Evan Hughes. See MICHAEL J. GERHARDT, THE FEDERAL APPOINTMENTSPROCESS: A CONSTITUTIONAL AND

HISTORICAL ANALYSIS16364 (2000).47. See, e.g., Goldman et al.,W Bushs Judiciary, supra note 33, at 269, 274 (presenting tables that

show the numbers and percentages of appointees to district courts and courts of appeals of members of

the opposite party for the last five administrationsranging from roughly 3% to 7%except that

President Reagan appointed no Democrats to the courts of appeals).

48. See GOLDMAN, supra note 21, at 78, 13031, 20507, 25960, 30102, 359 (discussing policy

agenda appointments in the Truman, Eisenhower, Nixon, Carter, and Reagan Administrations).

49. See, e.g., David S. Law, Appointing Federal Judges: The President, the Senate and the

Prisoners Dilemma, 26 CARDOZO L. REV. 479, 48586, 488 (2005) (discussing centralization of control

in the White House and related diminution in the role of Senators and of the Justice Department); see

alsoGOLDMAN,supra note 21, at 11 n.i (noting the increased importance of the White House Counsels

office in judicial selection beginning in the Carter Administration).

50. The change in the ABAs role raised concerns about how the selection process would reliablyobtain information about professional competence and judicial temperament: if the ABAs professional

assessment could begin only after a public announcement, lawyers might be more reluctant to share

negative information. See Goldman et al., W. Bushs Judiciary, supra note 33, at 255 (describing the

concerns expressed by Elliot Mincberg);see also Appendix II at text accompanying notes 4552.

51. Some observers suggest that while Supreme Court nominations have always been controversial,

the degree of controversy over lower court nominees has escalated. See, e.g., Law, supra note 49, at

490. But cf. Michael Gerhardt, Judicial Selection as War, 36 U.C. DAVIS L. REV. 667, 67480 (2003)

(reviewing earlier periods of conflict over lower court nominees under Presidents Grant, Hoover, and

Carter). Whether a higher percentage of modern nominees are controversial or whether the increase in

disputes is related to the larger numbers of appointments to the inferior Article III courts, the publicity

surrounding those contentious nominations colors perceptions.

52. SeeGoldman,Judicial Confirmation Wars, supra note 33, at 892, 900 (noting that, in the ClintonAdministration, Republican holds prevented many nominees from receiving hearings and in the Bush

Administration, Democrats filibustered several lower court nominees).

53. For discussion of the role of interest groups around the confirmation process, see, for example,

LAUREN COHEN BELL, WARRING FACTIONS: INTEREST GROUPS, MONEY, AND THE NEW POLITICS OF SENATE



15/44

Controversies over ideological predisposition in appointments might affect

the conditions for judicial independence in several ways. As noted earlier,

judges who believe they have been selected only, or primarily, for their predispo-

sitions may be consciously or subconsciously influenced to act in accordancewith those predispositions, rather than to aspire to impartiality and open-

mindedness of decision under law. If confirmation battles were to create the

impression that law has no existence apart from political predisposition,54 a

decline in public trust in the fairness of the legal system might follow. If public

trust declines, courts may lose some of the general legitimacy that enables (in a

certain sense) compliance with unpopular specific decisions.55 Finally, selec-

tions seen as highly ideological may elicit tit-for-tat responses, moving the

process to focus more highly on predisposition than on judicial competence and

character. Selection based primarily on ideological or partisan considerations

thus has some potential to undermine both the norms of judging and the publiclegitimacy of the courts.

There is widespread agreement about the non-ideological qualities that nomi-

nees for Article III courts should have (though not about how to measure them):

personal integrity; high intelligence; good professional training and experience;

the capacity to think and write clearly about legal issues; and judicial tempera-

ment, consisting of a willingness to bring an impartial mind to bear and a more

ephemeral quality lawyers call good judgment.56 In addition, there is agree-

CONFIRMATION (2002); GERHARDT, supra note 46, at 21333; ROBERT KATZMANN, COURTS AND CONGRESS

3435 (1997); Stephen B. Burbank, An Interdisciplinary Perspective on the Tenure of Supreme Court

Justices, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES 317, 33437 (Roger C.

Cramton & Paul D. Carrington eds., 2006). On the role of the media, see GERHARDT, supra note 46, at

23449; KATZMANN,supra, at 3536.

54. The degree to which law constrains decisionmaking, influences decisionmaking, or simply

masks the influence of other factors is the subject of a large literature, which can only be briefly noted

here. For the classic work on the attitudinal model, under which judges decisions are primarily

determined by their own values and predispositions as applied to the facts, see JEFFREY A. SEGAL &

HAROLDJ. SPAETH, THESUPREMECOURT AND THEATTITUDINALMODEL(1993). For a helpful discussion of

the contemporary literature, see Barry Friedman, The Politics of Judicial Review, 84 TEX. L. REV. 257,

270305 (2005) (describing how long-held attitudes and partisan affiliation, the need to cooperate withcolleagues on a multi-member court, and institutional demands of superintending lower courts and

anticipating reactions from other branches all work as factors influencing judicial decisionmaking). On

Friedmans account, law as a somewhat independent norm does have influence on judicial decisions.

See id. at 275 (noting emerging agreement that stare decisis influences not only lower courts but the

Supreme Court).

55. See Burbank, supra note 53, at 336 (referring to social science work on diffuse and specific

support); Gregory A. Caldeira & James L. Gibson, The Etiology of Public Support for the Supreme

Court, 36 AMER. J. POL. SCI. 635, 637 (1992) (describing diffuse support); Lee Epstein et al., The Role

of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government,

35 LAW & SOCY REV. 117, 12931 & n.21 (2001) (explaining that [d]iffuse support is not a direct

function of the willingness of a court to render decisions that are consistent with the substantive

preferences of the public but rather is a function of the evolution of constitutional decisions overtime, and that patterns of compliance with courts decisions reinforce diffuse support).

56. See e.g., ABRAHAM,supranote 46, at 12 (discussing his own and Professor Goldmans list of the

attributes of a good judge); Lawrence B. Solum, A Tournament of Virtue, 32 FLA. ST. U. L. REV. 1365,

136876 (2005) (analyzing the virtues of the ideal judge).



16/44

ment that the bench should be open to qualified nominees regardless of race,

ethnicity, religion, or gender.57 There is considerable disagreement, however,

over how much of a role ideological perspectives should play. Some argue for a

focus only on character and the non-ideological components described above;

58

others argue that it is appropriate for Presidents to pursue their ideological

agendas through judicial appointments that pay close attention to judicial

ideology, or for Senators to contest appointments on those grounds.59 Still

others argue that, while there is a role for ideology, it is important for the federal

bench as a whole to have a balance among a diversity of perspectives;60 and for

some, the President may consider ideology within moderate limits, and the

Senate may decide to block nominees on the same grounds if the ideological

choice is too extreme.61

In recent years, the national party platforms have included statements about

judicial appointments (generally framed in public-regarding terms),62 and na-tional political controversy has frequently revolved around issues before the

57. On the impact of racial, ethnic, and gender diversity of experience on judicial decisionmaking,

see Tracey George,Court Fixing,43 ARIZ. L. REV. 9, 1825 (2001) (summarizing literature finding that

the gender of the judge has little association with outcomes except possibly in discrimination cases; and

that ethnic or racial differences likewise had little relationship to outcomes except possibly in

discrimination cases, criminal cases, and prisoners rights cases). On other forms of diversity and their

impact on judicial decisionmaking, see, for example, Lee Epstein et al., The Norm of Prior Judicial

Experience and Its Consequences for Career Diversity on the U.S. Supreme Court, 91 CAL. L. REV. 903(2003); George,supra, at 2830 (discussing social, educational, and career diversity).

58. See, e.g., Stephen Carter, The Confirmation Mess, 101 HARV. L. REV. 1185, 1199 (1988). For a

suggestion that character may be used as a proxy for ideological commitments, see Part I(A) of

Michael J. Gerhardt,Whats Old Is New Again, 86 B.U. L. REV. (forthcoming 2007) (discussing new

rhetoric in the Senate around the 2005 Supreme Court nominations).

59. See, e.g., Press Release, Sen. Charles E. Schumer, Schumer Says Role of Ideology in Judicial

Confirmation Process Should be Legitimized and Considered in Evaluation of Judicial Nominees, June

26, 2001, http://schumer.senate.gov/SchumerWebsite/pressroom/press_releases/PR00612.html.

60. See, e.g., LAURENCE H. TRIBE, GOD SAVE THIS HONORABLE COURT: HOW THE CHOICE OF JUSTICES

SHAPESOURHISTORY10610 (1985).

61. As David Law helpfully observes, ideology is not coterminous with extremism and it may be

necessary to examine ideology in order to secure moderate appointees. See Law, supra note 49, at50001.

62. See, e.g., STRONG ATHOME, RESPECTED IN THE WORLD: THE2004 DEMOCRATIC NATIONALPLATFORM

FOR AMERICA 37 (2004), available athttp://www.democrats.org/pdfs/2004platform.pdf (promising the

appointment of judges who will uphold our laws and constitutional rights, not their own narrow

agendas); THE 2000 DEMOCRATIC NATIONAL PLATFORM: PROSPERITY, PROGRESS AND PEACE 26 (2000),

available at http://a9.g.akamai.net/7/9/8082/v001/www.democrats.org/pdfs/2000platform.pdf (promis-

ing appointment of justices to the Supreme Court who have a demonstrated concern for and

commitment to the individual rights protected by our Constitution including the right to privacy); T HE

2004 REPUBLICAN PARTY PLATFORM: A SAFER WORLD AND A MORE HOPEFUL AMERICA 7172 (2004),

available at http://www.gop.com/media/2004platform.pdf (proclaiming that a handful of activist

judges threaten to overturn commonsense and tradition and pledging to nominate only judges who

have demonstrated respect for the Constitution and the democratic processes of our Republic);REPUBLICAN PARTY PLATFORM OF 2000 (2000), available at http://www.presidency.ucsb.edu/

showplatforms.php?platindexR2000 (pledging to name only judges who have demonstrated respect

for the Constitution and the processes of our republic, in response to the problem that scores of

judges with activist backgrounds in the hard-left now have lifetime tenure).



17/44

courts (today including abortion, gay marriage, takings of property, rights of

detainees and criminal defendants, the death penalty, and presidential authority

to act against terrorism). Ideology and partisanship are thus likely, as a practical

matter, to continue to play roles in the selection, and confirmation, of federaljudges. To think that ideological predisposition is irrelevant in deciding cases

that involve hotly contested constitutional or statutory questions is to ignore

what we know about judicial decisionmaking;63 to think that judging is only

about a judges political or policy attitudes is to miss the constraining force of

law and of the judicial role.64

The justifications for considering ideological predispositions may be stron-

gest at the Supreme Court.65 The Court is the final judicial decisionmaker on

contested issues of constitutional law, as well as on a wide range of statutory,

procedural, federal common law, and international law issues. Due to changes

in its jurisdictional statutes over the twentieth century, the Court now has almostcomplete discretion over which appellate cases to decide.66 Given this discre-

tion, nominees views of the Courts role and what kind of cases it should hear

would be relevant. Because of the Courts discretion over its docket, a higher

percentage of the argued cases are controversial and fall between established

lines of authority and legal argument.67 These are the cases in which the judges

legal predispositions may play a greater role in the decisionnot necessarily

because of a general absence of law, as distinct from politics, in constitutional

interpretation but because judges experience and viewpoints matter in interpret-

ing law in open areas.68

On either account, one would expect greater scrutiny of

63. The attitudinal model of judging predicts that judges will seek to advance their own policy

preferences or attitudes in deciding cases. See George, supra note 57, at 33. See generally SEGAL&

SPAETH,supranote 54, at 6472, 20825. Many studies in this model support the relevance of the party

affiliation of the appointing President or party affiliation of the judge (as proxies for the judges

underlying attitude) to voting patterns in decided cases.See George,supranote 57, at 3336 & nn.88,

89 (summarizing and citing the literature on the influence of ideology on judicial decisions).

64. See generally Friedman, supra note 54; see also George, supra note 57, at 35 (noting that the

magnitude of difference in views between judges of different political affiliations is not as strong as it

is between voters or congressional representatives of different affiliationsa finding consistent withsome constraint associated with judging).

65. For example, district court judges sit alone to decide or supervise the jurys decision of contested

issues of fact, and findings of fact are always given deference on review. Trial court nominees

temperament, fairness, and acuity in dealing with litigants might thus be regarded as more important

than their ideological predispositions, especially because their legal decisions are all reviewable as of

right.Cf.George, supra note 57, at 32 (indicating that trial court judges are most constrained by legal

precedent).

66. See generallyEdward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years

After the Judges Bill, 100 COLUM. L. REV. 1643 (2000).

67. Cf. id. at 1733 (suggesting that the Courts discretion has led to a mindset that thinks of the

Supreme Court more as sitting to resolve controversial questions than to decide cases).

68. See supranote 54;cf. Friedman,supranote 54, at 33334 (concluding that while judicial reviewis embedded in politics, it is not quite of it. Politics and law are not separate, they are symbiotic.).

But see Richard Posner, The Supreme Court, 2004 TermForeword: A Political Court, 119 HARV. L.

REV. 31, 40 (2005) (arguing that in open constitutional cases, decision is political, not legal, in

character).



18/44

Supreme Court nominees predispositions than of lower court judges. But it is

also important to note that the U.S. Supreme Court remains a generalist

court.69 Unlike more specialized constitutional courts in Europe, the U.S.

Court sits to decide not only constitutional issues but also a broad range ofcases. The need for its Justices to be able to handle that range emphasizes the

need for excellent legal capacity and may moderate the role of ideology.70

C. PUBLIC HEARINGS AND JUDICIAL PRECOMMITMENT

Debate over partisan or ideological criteria is reflected in public Senate

hearings. Supreme Court nominees did not regularly appear at confirmation

hearings until the 1950s, but today Senators ask questions designed to probe the

nominees views, about legal interpretation and about particular substantive

areas, in a public exploration which some applaud and others would abandon in

favor of prior practice.71 From the vantage of judicial independence, the con-

cern is that judges who indicate how they would rule with respect to pressing

legal issues of the day will be unable to maintain the appearance or actuality of

impartiality and open-mindedness to argument that is expected of judges.72

Nominees from both parties tend to draw some line between general questions,

which they will answer, and questions that may come before them as judges,

which they will not73perhaps reflecting a pragmatic consensus that differ-

ences in approach to interpretation matter, but can be probed only to a limited

69. For example, a quick review of U.S. Law Weeks recent summary of the Courts forty-nine civil

cases in the Term ending June 2006 found that well over half involved primarily statutory or

procedural problems, such as whether certain joint ventures are per se violations of the Sherman

Antitrust Act, the effect of a failure to move for judgment as a matter of law on review of sufficiency of

the evidence, or the scope of Title VIIs protection from employer retaliation against those who

complain of discrimination. See Supreme Court Term in Review, 200506: Civil Cases, 75 U.S.L.W.

3057 et seq. (Aug. 8, 2006).

70. Cf. Carsten Smith, Judicial Review of Parliamentary Legislation: Norway as a European

Pioneer, 2000 PUB. L. 595, 605 (having judicial review . . . implemented by judges whose main duties

are ordinary application of the law, ensur[es] to a large degree that they apply recognized judicial

methodology). This observation, if correct, might support the arguments of those who favor some

diminution in the discretion the Supreme Court has over what cases it takes, to assure an appropriatemix of nonconstitutional as well as constitutional questions.

71. See, e.g., JUDICIAL ROULETTE: REPORT OF THE TWENTIETH CENTURY FUNDTASK FORCE ON JUDICIAL

SELECTION811 (1988) (urging, except where an issue of personal conduct exists, a return to the prior

practice according to which Supreme Court nominees should no longer be expected to appear as

witnesses during the Senate Judiciary Committees hearings on their confirmation);see alsoAppendix

II at note 38 and accompanying text.

72. Some would argue that it is foolish to expect mid-career lawyers who have formed views to

change them, and accordingly, the public is entitled to know those views. Where a candidate has

publicly written on a subject, discussion of those views can be expected. Pressing a candidate who has

not publicly commented already to disclose whatever her existing views are may force a hardening of

positions from which the nominee, if confirmed, would not retreat, thus interfering with the possibility

of reconsideration or modulation of views once a case has been fully heard.73. SeeRepublican Party of Minn. v. White, 536 U.S. 765, 807 n.1 (2002) (Ginsburg, J., dissenting)

(noting that in accord with a longstanding norm, every Member of this Court declined to furnish . . . in-

formation to the Senate, and presumably to the President, about how each would resolve particular

contentious issues). Different nominees have varied somewhat in what cases they regarded as so



19/44

extent through direct questioning without compromising other important values.

Although it might be argued that in an era of legal realism picking judges should be

understood as picking predispositions, and thus those predispositions should be a

legitimate subject of inquiry,

74

the insights of legal realism need not imply legalcynicism about the possibilities for impartial judging, according to established legal

norms, on most issues that come before most judges. In many cases decided by

federal Article III judges, the legal norms provided by precedent, statute, or constitu-

tional text are relatively clear and would be applied in a similar way by most judges of

either party; in other cases, where the law is uncertain, ideological and methodological

predispositions may indeed matter, even as each judge should strive for impartial

application of the law. While it remains open to Presidents and Senators alike to

consider a nominees experience and prior writings in evaluating ideological disposi-

tion, it also remains important for the selection process to convey expectations of

impartiality and independence of judgmenta goal that will limit what questions areasked and answered.

D. CAREERIST VS. INDEPENDENT LOWER COURT JUDGES?

Looking to the lower courts for nominees to appellate positions, which many

observers identify as a trend (particularly in Supreme Court appointments),75

has obvious advantages, providing opportunity to evaluate judicial temperament

and craftsmanship through the nominees past judicial experience.76 But doing

so may also create undesirable incentives for decisions made with an eye to

settled that they will express a view, and what prior cases of the Court might be open to overruling and

thus should not be discussed. See SUSAN LOW BLOCH & THOMAS H. KRATTENMAKER, SUPREME COURT

POLITICS: THEINSTITUTION AND ITS PROCEDURES 197301 (1994) (excerpting materials from confirmation

hearings for Robert Bork, David Souter, Clarence Thomas, and Ruth Ginsburg); Nina Totenberg, The

Confirmation Process and the Public: To Know or Not To Know, 101 HARV. L. REV. 1213, 1219 (1988)

(noting that Justice Scalia, in his confirmation hearing, refused to answer questions about specific cases,

evenMarbury v. Madison).

74. Cf. William P. Marshall,Constitutional Law as Political Spoils,26 CARDOZOL. REV. 525, 53335

(2005) (analyzing this argument). Professor Marshall questions whygiven the logic ofRepublican

Party of Minn. v. White, 536 U.S. 765 (2002) (which held unconstitutional a state ban on judicialcandidates making election promises) and the logic of legal realism combined with legal positivism

nominees for Article III courts should not be expected to tell the Senate how they would decide

important issues. His most forceful answer is that an ideologically-driven appointments process

legitimizes ideological judicial decision-making . . . licens[ing] judges to act in accord with their own

political leanings. Marshall, supra, at 53637; see also Ronald D. Rotunda, The Role of Ideology in

Confirming Federal Court Judges, 1 5 GEO. J . LEGAL ETHICS 127 (2001) (arguing against Senate

questions, and nominee responses, with respect to particular issues).

75. See, e.g., Lee Epstein, Jack Knight & Andrew D. Martin,The Norm of Prior Judicial Experience

and its Consequences for Career Diversity on the U.S. Supreme Court, 91 CAL. L. REV. 903, 908917

(2003).

76. Service on a lower court may also serve as a valuable credential for appointment to a higher

court. See GOLDMAN, supra note 21, at 115 (noting that President Eisenhower considered judicialexperience valuable and . . . made it clear that he would use an appeals court appointment as a stepping

stone to the Supreme Court and did so with three of his four Supreme Court appointments). In some

foreign constitutional courts, a percentage of their judges are required to be drawn from other courts.

See, e.g., KOMMERS,supra note 7, at 88 (describing requirements for the German Constitutional Court).



20/44

advancement through necessarily political confirmation processes.77 While the

number of Article III judges being promoted to higher Article III courts may be

higher than in the past (and the trend toward looking to judges already serving

in the lower courts for nominees to the Supreme Court is clear), the percentageis still relatively low;78 but if lower court positions came to be viewed more as

stepping stones rather than capstones, the temptation at the margin for

self-interested decisionmaking might increase, especially in an atmosphere in

which confirmation battles focus more openly on ideology.79 Some argue for a

tournament of judges based, for example, on how often lower court judges are

cited in other courts.80 Others dispute that service on lower courts should be

seen as a competition, or contest the value of such supposedly objective

criteria of merit as influence (measured by citations in other courts), arguing

that they may reward flamboyant writing rather than good judging, or do not

capture the range of qualities good judges should have, or create perverseincentives to game a purportedly objective count.81 Many scholars argue for

77. See Daniel Klerman, Nonpromotion and Judicial Independence, 72 S. CAL. L. REV. 455, 455

(1999) (arguing that while [l]ife tenure is probably the most important guardian of judicial indepen-

dence, a policy not to promote lower court judges could also promote independence); id. at 45556

(noting research showing that federal judges likely to be selected for advancement tended to impose

harsher penalties in antitrust cases and were more likely to uphold the constitutionality of the

Sentencing Guidelines). Moreover, Epstein and her co-authors raise concerns about the marked trend

toward nominating to the Supreme Court only those with prior judicial experience (primarily on the

U.S. Courts of Appeals) because it reduces the career diversity of those who serve and therebyadversely affects the Courts decisionmaking capacities. Epstein et al., supranote 75, at 90811.

78. Compare, e.g., Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life

Tenure, 26 CARDOZO L. REV. 579, 609 (2005) (stating that appellate judges (of both the intermediate and

highest courts) are increasingly drawn from the ranks of lower court judges including statutory federal courts),

withKlerman,supranote 77, at 46163 (suggesting that while there may be more appointments from the lower

Article III courts to appellate positions, the percentages so appointed have not increased in recent years because

the pool has also increased). Cf. Resnik, Uncle Sam Modernizes, supra note 29, at 671 n.281 (identifying

eighty-two Article III judges who had previously served as non-Article III statutory judges). On the trend in

Supreme Court nominations, see Epstein et al., supra note 75.

79. See Resnik, supra note 78, at 609 ([T]he possibility of promotion may undercut the ability of

judges to feel unfettered by personal interest when rendering judgments.); cf. Andrew P. Morriss et al.,

Signaling and Precedent in Federal District Court Opinions, 13 SUP. CT. ECON. REV. 63, 64 (2005)(finding that [j]udges were more likely to use written opinions to communicate their rulings in

Sentencing Guidelines cases where the potential for promotion to the circuit court of appeal was

greater). Whether looking over their shoulders in hopes of advancement would tend to make lower

court judges more careful (presumably a good thing), or would instead tend to make them more likely

to rule in accordance with whoever controls the nomination and confirmation processes is debatable,

but the presence of any effect raises concerns about the latter. And whether a concern for the approval

of those who control the nomination and confirmation process would tend to produce more moderate

or more polarized positions might depend on the political configuration of the Presidency and the

Senate expected at the time when an appointment approaches (with perhaps greater concern for the

President, given the Presidents power of initiative).

80. See Stephen Choi & Mitu Gulati, A Tournament of Judges?, 9 2 CAL. L . REV. 299 (2004)

(proposing that judicial nominees be evaluated and selected based on objective measures of merit,including quantitative output, independence on the bench (as reflected in separate opinions on appellate

panels), and influence on other judges (as measured by citation analysis)).

81. See, e.g., James J. Brudney, Foreseeing Greatness? Measurable Performance Criteria and the

Selection of Supreme Court Justices, 32 FLA. ST. U. L. REV. 1015, 1051 (2005) (arguing that application



21/44

broader understandings of merit, suggesting that Presidents would do well to

consider Supreme Court nominees with governing experience, like that of

(President) Taft, (Governor) Warren, or (Senator) Black.82

E. PARTISAN RANCOR AND FRICTION

Notwithstanding such debates, history and constitutional structure suggest

that politics will continue to play a critical role in nominations both to the

Supreme Court and to the lower federal courts. Yet too much rancor in the

confirmation process may, by itself, threaten judicial independence, albeit indi-

rectly: it might affect the quality of persons willing to be nominated or the range

of perspectives represented on the bench, and thus diminish the courts ability to

do their job well.83 Rancor over confirmation battles might also feed disputes

over legislation that could affect the independent operation of the federal courts

(for example, court funding, judicial salaries, jurisdiction, substantive intrusionson adjudicatory functions,84 and threats of impeachment85). While the public

of Choi-Gulati criteria would not have correctly predicted the relative performance of Warren Burger or

Harry Blackmun on the Supreme Court); Solum, supra note 56, at 139596 (arguing that the

Choi-Gulati proposal misses important virtues of judging and would permit gaming of some of the

supposedly objective measures); David Vladeck, Keeping Score: The Utility of Empirical Measure-

ments in Judicial Selection, 32 FLA. ST. U. L. REV. 1415, 1417 (2005) (criticizing the Choi-Gulati

criteria as ill-suited to their goal of objectively measuring merit).

82. See, e.g., Epstein et al., supra note 75, at 908 (arguing that over-reliance on prior judicial

experience reduces the diversity, and thus the decisionmaking abilities, of the Supreme Court); cf.Steven Goldberg, Federal Judges and the Heisman Trophy, 32 FLA. ST. U. L. REV. 1237, 124344

(2005) (drawing an analogy to how few Heisman Trophy winners succeed in professional football,

suggesting that success on appellate courts does not correlate with greatness on the Supreme Court and

that most of the most successful Justices had not previously served on lower federal courts).

83. See, e.g., WILLIAM H. REHNQUIST, CHIEF JUSTICE, 2001 YEAR-END REPORT ON THE FEDERAL JUDI-

CIARY (Jan. 1, 2002), available at http://www.supremecourtus.gov/publicinfo/year-end/2001year-

endreport.html (stating that the often lengthy and unpleasant nature of the confirmation process was,

together with low salaries, making it increasingly difficult to find qualified candidates for federal

judicial vacancies); cf. MARK SILVERSTEIN, JUDICIOUS CHOICES: THE NEW POLITICS OF SUPREME COURT

CONFIRMATION 16364 (1994) (discussing incentives for nominating stealth candidates). For refer-

ences to the empirical literature on judicial diversity and decisionmaking, see supranote 57. There may

be reasons to promote some forms of diversity on the federal bench, apart from any asserted effects onthe substantive results in discrete sets of cases, that go to the perceived legitimacy of the court and

fairness by which it is constituted.

84. See, e.g., PROTECT Act of 2003, Pub. L. No. 108-201, 401 (h), (l), 117 Stat. 650, 672, 67475 (2003)

(requiring the reporting of individual judges who made downward departures from the Sentencing Guidelines);

United States v. Detwiler, 338 F. Supp. 2d 1166, 1178 & n.17 (D. Or. 2004) (criticizing this requirement, part of

the so-called Feeney Amendment, as an attempt to intimidate judges inconsistent with the constitutional

separation of powers); Constitution Restoration Act of 2004, S. 2082, 108th Cong. 201 (2004) (seeking to

prohibit reliance on foreign law, except English constitutional and common law, in interpreting the Constitu-

tion); American Justice for American Citizens Act, H.R. 4118, 108th Cong. 3 (2004) (indicating that federal

judges should not resort to foreign law in constitutional interpretation, except English law as it influenced the

Framers); The Reaffirmation of American Independence Resolution, H.R. Res. 568, 108th Cong. (2004)

(seeking to restrict references to foreign law in interpreting federal law).85. See, e.g., Tom Curry, A Flap Over Foreign Matter at the Supreme Court: House Members

Protest Use of Non-U.S. Rulings in Big Cases, MSNBC, Mar. 11, 2004, http://www.msnbc.msn.com/id/

4506232 (discussing Rep. Feeneys implicit threat of impeachment for judges who would ignore a

proposed resolution forbidding the use of foreign law); see also Constitution Restoration Act of 2004,



22/44

interest would be well served by a less rancorous approach, political compro-

mise on these issues is to some extent contingent on larger political contexts.

And to the extent that the politics of judicial selection processes pose some risks

to judicial independence, the tenure provisions of Article III judges loom largeras part of the independence package.

II. ARTICLEIII ANDJUDICIALTENURE

The Declaration of Independence in 1776 specifically charged the King with

having made judges dependent on his Will alone, for the tenure of their offices,

and the amount and payment of their salaries.86 Of the provisions of Article III

concerning the establishment of the federal courts, none have made so impor-

tant a contribution to judicial independence as those protecting judges tenure

and salary in office.

87

Defending them inThe Federalist Papers, written to winstate ratification of the Constitution, Alexander Hamilton argued the importance

of permanency in office, as opposed to periodical appointments:

That inflexible and uniform adherence to the rights of the Constitution and

of individuals, which we perceive to be indispensable in the courts of justice,

can certainly not be expected from judges who hold their offices by a

temporary commission. Period

Date post:	04-Jun-2018
Category:	Documents
Upload:	lawclc
View:	216 times
Download:	0 times

VivkyJackson-judicialappointment

Documents