A SURVIVOR'S PERSPECTIVE: FEDERAL JUDICIAL SELECTION FROM GEORGE BUSH TO DONALD TRUMP.

• Author: Southwick, Leslie H.

INTRODUCTION

Where are we, and how did we get here?

Thoseare not bad questions for seeking a way out of any troubled situation, orfor that matter, remaining in a good one. Over recent decades, federal judicial selection controversies are worsening in their frequency and intensity. They distort all three branches of government. My particular concern is with federal judicial selection for judgeships below the Olympian heights of those on the United States Supreme Court, namely, the judges on the twelve regional circuit courts of appeals and the ninety-four district courts.

The depth of partisan acrimony over judicial confirmations has placed usin the infernal regions, and we seem to be continuing our descent. Analyzing how we got there is invariably affected by the biases, or more gently, by the perspectives of the observer. I will try to avoid suggesting blame, but it is my hope to suggest the forces--political, historical, and even jurisprudential--that have propelled the process in the direction we have gone.

There are several possible starting points for a survey. The beginning, i.e., 1789, is well beyond my competence to explore in depth. Nonetheless, I will give a quick historical survey, my point being that current controversies about judges have not displaced a magical time when judicial selection was above the political fray, where legal luminaries were always nominated and then were met with universal approval. Very early, one party's seemingly overweening effort to pack certain courts led to a landmark Supreme Court decision.

A significant consideration for me when deciding the time period to cover, in addition of course to making the task manageable, was that if I am going to write on a topic much written upon already, perhaps it would be beneficial to write from the perspective of someone who for several decades has been tangentially involved with nominations of lower-court federal judges. The thirty-year period I have chosen began with my work at the Department of Justice during the first President Bush's one term. While therein 1989-1993, I was a failed aspirant for one of those judgeships. During theyear-long migration from applicant to also-ran, I witnessed the process both as an insider of the administration but as an outsider to most of the eventsthat culminated in the selection. In the George W. Bush administration, 2001-2009,I was selected for the circuit judgeship I now hold, but success took almost all of Bush's eight years. Since then, I have observed closely fornew colleagues both in the Fifth Circuit and elsewhere. Such a perspective, though, is admittedly a distorted one. Another distortion that follows from the first is that my personal knowledge causes me to write more about the Fifth Circuit Court of Appeals than about other courts--an emphasis, but not an ignoring of the rest of the country.

Whatwill be discussed are significant nominations of each of the presidencies duringthe thirty-year period, almost all being circuit court nominations. The reasons I discuss a particular nominee will vary. Some were chosen because they led to new rules for processing nominations. Others became national news stories worth recalling. Still others were the paths that particularly well-known judges took to reach their positions.

Because my experience was as a several-times-frustrated aspirant, and then finally a controversial nominee, I also will discuss when possible the impactof the harshness, or to use an apt if old-fashioned word, the meanness, that is injected in some nominees' confirmation struggles. I will say, after my own journey ended in 2007, what I thought was harsh seems mild compared to some more recent battles. I had protested too much. What I saw as not just unfair criticism but some critics' indifference to the validity of thecharges caused me to rely more and more on my Christian faith for keeping the worries of the world in their proper place. I will focus on that aspect when I can in part because this is a law review at a school that at least was founded on faith. In addition, the pointed rejection by some that a judge canbe faithful both to his or her religion and to the judicial oath is a dangerous trend but a natural one in the present world. That is too corrosive a view to ignore.

A confession before starting. My experience makes me almost invariably sympathizewith a judicial nominee regardless of the controversy or the President who made the selection. I say that even though in recent decades, each political party and its supportive groups have increasingly insisted on the nominationof judges who will apply their favored analytical principles, ranging froma tight focus on text and original meaning to a belief that the interpretive method must be sufficiently supple to allow reaching the best meaning under current societal standards. In my twelve years on the Fifth Circuit, I have had gifted colleagues join this court. The political process is unnecessarily harsh, but within that reality, the survivors need to become friends by sharing in the common task. Seeing another judge not as evil but as simply being in error are fundamental to serving on an appellate court.

1. IN THE BEGINNING

   I will give a relatively brief background to indicate that though there havebeen increasing and accelerating controversies about selection of federal judges, the problems have been with us since the first presidency. A 1993book written by Stanford law librarian J. Myron Jacobstein and University of Texas law librarian Roy M. Mersky, called The Rejected, identified twenty-six nominees to the Supreme Court whose confirmations were, well, rejectedby actual votes or by being ignored. (1) The book begins with a nomination by the Father of the Country, George Washington, whose stature did not save John Rutledge, his nominee to be Chief Justice. (2) At least some of the votes against confirmation arose from Rutledge's injecting himself into politics by opposing the Jay Treaty with England in a well-publicized speech, which Rutledge gave almost at the same time that the President gave him a recess appointment as Chief Justice in July 1795. When the Senate came back into session in December, confirmation was rejected by a 10-14 vote. (3)

   In describing the early decades of selection politics, it is hard to overlook that Marbury v. Madison arose from a new President and his political party's outrage over a previous President and his party's "midnight" appointment of numerousnew judges, even if the judges involved in that case were only justices of the peace for the District of Columbia and Alexandria, Virginia, serving five-year terms. (4) A Jeffersonian newspaper called the creation of new courts by a Federalist Congress and the immediate filling of the positions by President John Adams, who was in his last weeks in office after being defeated for reelection, "one of the most expensive and extravagant, the mostinsidious and unnecessary schemes that has been conceived by the Federal party."(5) It was not all that, but the bill was a bit bold. The bolder enactment passed at the same time was the Judiciary Act of 1801, which created six circuit courts with sixteen life-tenured judges who relieved the Supreme CourtJustices from their arduous circuit-riding duties that required each Justice to travel by horse, buggy, or boat to one of the six circuits to hear appeals. (6) The President quickly nominated and the Senate confirmed a complete battery of judges, but the Act was repealed by the new Jeffersonian Congress. (7) The Supreme Court, perhaps considering discretion the better part of valor, did not disturb Congress's forcibly ending sixteen judges' life tenure while they were still alive. (8)

   This early dispute had as much to do with patronage in judicial selection as it did with the likely future rulings of judges. One detailed identification oflater controversies over judgeships is a list maintained by the Federal Judicial Center of all nominees for judgeships who did not serve as judges. (9) In theearly decades, what that source reveals is that there were more declinations of judgeships after confirmation than there were defeats. President Washington, for example, had two nominees to the Supreme Court decline their appointment in addition to Chief Justice Rutledge's nomination being rejected; Washington also withdrew an additional nomination to the Court. (10) Difficulties of communication in those years certainly played a significant role in that story, with nominations for judgeships occurring without prior communications with the nominees. The list also shows that politically weak presidents, such as John Tyler who served as Vice President only for a month in 1841 and then ascended to the highest office at the death of President William Henry Harrison, had a record of defeats of judicial nominees in the Senate that was abnormal for the times. (11) Some of the failures even to get votes in the Senate were for those nominated very late in a presidency. (12) The first failure of a nominee to the Fifth Circuit, for example, was of U.S. District Judge Edward Billings of New Orleans, who was nominated to the court by the outgoing President in January 1881; a new President had been elected the previous November. (13) Billings never came up for a vote.

   One memorable defeat of a Supreme Court nominee occurred ninety years ago. President Hoover's nomination of Fourth Circuit Judge John Parker to be an Associate Justice on the Supreme Court failed by a 39-41 vote inMay 1930. (14) He was opposed due to statements he made in his 1920 campaign as a Republican for North Carolina governor when he said he did not want any votes from black citizens, who, though they were at that time usually Republicans, were such a small part of the electorate that Parker wanted to deflect Democratic claims that he was seeking such votes. (15) Labor leaders opposed him for a judicial decision he had made to uphold an...