Picking Federal Judges: Lower Court Selection from Roosevelt Through Reagan.

AuthorSchattman, Michael D.

Picking Federal Judges: Lower Court Selection from Roosevelt Through Reagan. By Sheldon Goldman. New Haven Yale University Press. 1997. Pp. xv, 428. $45.

Each filling of a judicial vacancy is a minidrama of individual ambitions,

backstage maneuverings, mobilization of support, and occasional

double-dealing, and is affected by the values of those involved

in the process. There is human drama as political forces, events and

personalities intersect. And the end result is the staffing of the third

branch of government, which by its actions -- or inactions -- has a

profound effect on American lives. [p. 365; footnote omitted]

With these words, Professor Goldman(1) concludes the lesson he began nine chapters earlier as he embarked on his exploration of the seldom-mapped territory where the American government sets about building that smallest part of itself that has the most day-today continual contact with the American people. But I would hope that the readers of this review and of this book would keep that simple lesson uppermost in mind as they consider Sheldon Goldman's unique contribution to our understanding of ourselves.

INTRODUCTION

I have twice been nominated to the federal bench by President Clinton. The first nomination, in December 1995, lapsed at the end of the 104th Congress. I was renominated in March 1997. I have never had a hearing and never had a letter from the Senate Judiciary Committee requesting additional information. In 1995 and again in 1997 the White House precleared my nomination with my two home-state Republican senators. Originally, I was nominated before the scheduled retirement date of the judge I was named to replace, which gives knowledgeable readers an idea of the lack of controversy surrounding my appointment. I had strong bipartisan support. In July of 1997, however, almost two years to the day after I was first recommended to the President by the Texas congressional delegation, my affirmative blue slips were suddenly withdrawn by the Texas senators.(2)

For those readers who have no idea what withdrawal of blue slips means, I recommend perusing Sheldon Goldman's Picking Federal Judges Lower Court Selection from Roosevelt Through Reagan. It should be read by every lawyer who wants to be a federal judge as well as by those who practice in front of them. Much of its importance resonates in the current political atmosphere and can be seen in the increased attention given to presidential nominations, judicial or otherwise, in both the popular press and legal academia. This is due in part to the personal peccadilloes of the nominees -- consider, for example, former Senator John Tower's lifestyle, which was so criticized by his fellow Republicans, or Zoe Baird's failure to pay social security on domestic help despite two large professional incomes. The nominee becomes a caricature of a social problem and an object lesson for the public.

It is also important to a growing understanding of the role these once-anonymous persons play in the life of the Republic and in the lives of each of us. This latter realization may account for the proliferation of scholarly articles devoted to the nomination process that have appeared in the last few years.(3) These articles, however, are not likely to be read widely even in legal circles. Goldman's book provides information to lawyers, judges, the press, and the general public in an anecdotal format and with an astounding amount of insider detail -- including handwritten notes between presidents and their confidants.(4) He spends little time on well-covered Supreme Court nominations, concentrating as his subtitle says on lower court selection.

Goldman's book is a work of political science, and it is short on the historical context that would be useful to interpret the tables located throughout the text. In fact, it does not tell you nearly enough about blue slips? But it certainly will allow you to refute the common misconception that the politicization of nominations started with Judge Bork.

I wish to settle that bit of historical inaccuracy first politicization of the process of selecting federal judges has been around for a long time. Less than two year's after Truman became president upon the death of Roosevelt, the Republicans gained control of the Congress. Wisconsin Senator Alexander Wiley headed the Senate Judiciary Committee. According to Goldman, Senator Wiley announced even before he assumed the chairmanship that the Senate would confirm no "leftists" (p. 81). Soon after, he stated he wanted a political balance in appointments--that is, more Republicans. Next, he proclaimed his opposition to any New Dealers. His committee held' up nominations and the number of confirmations began to drop sixteen in 1946 when the Democrats were in control, ten in 1947 under the party opposite the president, and in 1948, anticipating President Dewey, the total confirmed by the Republican-controlled Senate dropped to three (p. 81).

I cannot say, for this is not a history book, whether this strategy led to the appellation "do-nothing Congress" and the triumph of Harry Truman. It was, however, nearly fifty years before the country chose again to have a Democratic President paired with a Republican Senate. It is somewhat surprising, given the previous results, that the Republican leadership would resurrect Senator Wiley's old playbook. Yet here we are today, hearing almost the same words and watching the same damming up of the process.

Contrast this approach to Goldman's account of the Democratic-controlled Senate's approach to President Nixon's judicial nominees as impeachment and resignation loomed. As August 1974 began, only one of Nixon's judicial appointees remained pending. Then, on August 8, his last full day in office, Richard Nixon nominated three more judges. All four of his final nominees were confirmed (p. 226).

As Professor Goldman makes obvious to the diligent reader, there is no need for Wiley-like behavior.(6) This system designed by our Founding Fathers is so evenly balanced that by 1961, after twenty years of Roosevelt-Truman followed by only eight years of Eisenhower, the federal judiciary was evenly split between Democrat and Republican office holders (p. 157). This is despite the fact that the Senate had a Democratic majority for twenty-two of those twenty-eight years, including the final four opposite Eisenhower. It is an excellent example of letting the political market take its course without deliberate interference. Individual Candidates should be reviewed on the merits. That is what the Constitution demands and expects, hose who would deliberately interfere: with the process in order to limit the total output are selfish and reckless. They are selfish because deliberate interference is a bullying tactic adopted by sore losers that says in effect: you won but you can't have the prize. They are reckless on two bases. On a narrow basis, this strategy led the Republicans to defeat in 1948. On a wider basis, it interferes with the natural pendulum swing of free ideas which has protected our nation from the upheavals so common in other democracies.

A state without the means of some change is without the means of its conservation.

-- Edmund Burke(7)

PERSPECTIVE

The best way to approach this book is to use the same roadmap as Professor Goldman -- the successive presidential administrations that have introduced judicial nominees to the Senate and the people. He does so in nine chapters, with the first giving a general overview from 1789 to 1933. Seven chapters follow analyzing the selection process and criteria by each administration from Roosevelt to Reagan (Kennedy and Johnson are considered in one chapter, as are Nixon and Ford). The final chapter reprises what has gone before and then, for scholars or the incurably curious, a concise note on the sources available to most anyone, and finally forty-two pages of excellent detailed notes. I shall follow the same route and take the chapters and presidents in order.

While the opening chapter in Goldman's book is entitled "Judicial Selection in Theoretical and Historical Perspective," it is really more a description of his personal framework for reading a president's mind. He describes three presidential agendas: policy, partisan, and personal (p. 3). The policy agenda is "the substantive policy goals of an administration." The partisan agenda is Goldman's shorthand for the use of power "to shore up political support for the president or for the party." Finally, the chief executive's personal agenda is not surprisingly defined as his use of "discretion to favor a personal friend or associate." From time to time in later passages the author reminds the reader of these concepts as he discusses the making or unmaking of a particular nomination or how one agenda was served by another. The problem with the agenda concept is that some presidents delegated this job almost completely. Furthermore, the relative value Goldman places on these distinctions is apparently low since there is no chart referencing or cross-referencing this information. It appears sporadically in the text and not in the final summations.

Goldman uses historical perspective to mean a summary of the period between the Constitutional Convention and Herbert Hoover -- that is, the time prior to the start of Goldman's research. Perhaps because I majored in history and have made it a lifelong passion, I craved historical perspective. It is difficult to determine what any president was thinking, policy versus party interests, if you cannot put decisions into the context of the issues of the times and the place. If this book is ever updated it ought to be coauthored by a historian.

ROOSEVELT

Franklin Roosevelt's meticulous attention to the slightest detail and his apparent delight in manipulating the pieces on the chessboard are the hallmarks of his selection of judges for the federal bench. If the author's agenda analysis is...

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