FEDERAL JUDICIAL APPOINTMENTS, TENURE, AND INDEPENDENCE

In the federal judicial system the appointment and tenure of judges are governed by the Constitution and by statutes enacted by Congress. Neither the Constitution nor Congress controls the structure of state judicial systems or the appointment and tenure of judges of those courts; under state laws, judges are variously popularly elected or appointed by the governor or another state officer, with or without the consent of the legislature, a commission, or a confirming election. State judges do not have life tenure.

Federal courts are classified as "Article III courts," also known as constitutional courts, and "Article I courts," also known as legislative courts. The constitutional courts are those courts specified in Article III, section 1, vesting the judicial power of the United States "in one supreme Court, and such inferior Courts as the Congress may from time to time ordain and establish." These judges have lifetime tenure and compensation that cannot be reduced during their judicial service. Legislative courts encompass the remaining adjudicative tribunals that are congressionally established but do not have all of the characteristics required by Article III. Judges of legislative courts are appointed for terms of years; the jurisdiction of those courts is not coextensive with Article III courts' jurisdiction.

Except for recess appointments by the President to fill vacancies when the Senate is not in session (Article II, section 1), constitutional Justices and judges hold their offices "during good behavior," as Article III provides. In united states ex rel. toth v. quarles (1955), the Court held that the good behavior clause guarantees such judges lifetime tenure, subject to removal only by impeachment.

Article II, section 2, requires nomination of Article III Justices and judges by the President "with the advice and consent of the Senate." The role of the Senate under the advice and consent clause has been debated since the constitutional convention of 1787. The clause was adopted as a compromise in the closing days of the Convention as an alternative to proposals to grant appointing power to the President alone or to the Senate alone; the delegates did not discuss the meaning of the clause.

Senators have variously interpreted their constitutional obligations in proceedings to confirm presidential nominations to the judiciary. Some senators have treated their task as little more than a procedural formality unless the nominee is egregiously unfit for the judicial post to which he or she has been named or a serious flaw in the candidate's background is revealed during the deliberations. Other senators have expansively interpreted their responsibility to "advise" the President, including the advice that the President's choice is wrong. The history of confirmation battles strongly suggests that the fate of a particular nominee more often depends on the political views of the senators than on intellectual differences over constitutional interpretation. Apart from the individual characteristics of the nominee and the personal and political philosophies of the senators who act on a nomination, the outcome of the process is heavily influenced by the sensitivity of the judicial post to which the candidate has been named, the existing composition of that particular court, the relative power of the President and the Senate at the time of the nomination, and the prevailing national political climate. The closest senatorial scrutiny is usually given to nominees for the Supreme Court. The obvious reason is the tremendous importance of the Court. Less obvious is that senatorial courtesies do not have the same significance in confirmation of Supreme Court nominees as they do in nominations to district courts and courts of appeals. In the latter instances, the opposition of one senator from the nominee's home state is usually enough to doom confirmation, especially if the senator is a member of the President's political party.

Scant attention was given to the public interest in judicial confirmations before 1929 because, until then, the Senate acted upon all nominations in closed executive session unless the hearing was ordered open by a two-thirds vote of the Senate. Except in rare instances, such as the nomination of Justice louis d. brandeis in 1916 and of Justice harlan fiske stone in 1925, the necessary votes could not be mustered. The Senate rules were amended in 1929 to open all confirmation hearings.

Even after hearings were open, they were usually quiet events. Nominees were not called to appear before the senate judiciary committee until 1939, when the nomination of felix frankfurter was under consideration. Although he initially declined to appear, he later testified and was unanimously approved by the Senate. Since then, with few exceptions, nominees to Article III courts are routinely called to, and do testify before, the Judiciary Committee. The addition of televised hearings probably has not changed confirmation results, but at a minimum it has heightened the drama of controversial appointments and encouraged oratory.

Although the confirmation process is now generally available in living color, the roles of the actors in the prenomination process are neither public nor well known. The large cast includes the President, the inner circle of the White House, senators who are not members of the Judiciary Committee, congressional delegations, the attorney general, the Department of Justice, the Federal Bureau of Investigation, the American Bar Association, and sometimes others.

Presidential means and motives for selecting nominees to the Supreme Court defy facile description. Supreme Court vacancies occur unpredictably and sporadically. For example, no vacancies on the Court appeared during President jimmy carter's term, but Justice potter j. stewart's retirement gave President ronald reagan his first appointment to the Court within a few months of his assuming office.

History gives substance to Justice Felix Frankfurter's description of Supreme Court nominations as "that odd lottery." Sometimes the presidential motivation for a particular appointment is evident, even if the means by which the person came to presidential attention are not. Thus, President herbert hoover's reason for nominating charles evans hughes as chief justice in 1930 was the economic plight of the country and his belief that Hughes would forward views that would help the President's economic policies. On the other hand, the source of President ulysses s. grant's choice of Caleb Cushing is known, but his motives in selecting him are not. The nominee was seventy-four years old, and his political philosophy was unknown. President Grant withdrew the nomination after he discovered Cushing's ties to the Confederacy. Both the source and motive are occasionally clear, as is true of President lyndon b. johnson's nomination of Solicitor General thurgood marshall.

History permits only a few generalizations about presidential choices for the Supreme Court. For example, the nominee will almost always be a member of the political party of the President, and in making selections the President will rely on the advice of trusted friends within and outside his administration and of those persons whose support, or nonopposition, will be needed to confirm the nominee or to assist the President in achieving other objectives on his political agenda.

Presidents have sometimes selected candidates for lower courts without initial outside consultation. Usually, however, the President makes his choice from a list of potential nominees submitted to him. For district courts, typically a nomination is initiated by a senator of the candidate's home state if the senator is of the President's political party. When no senator of the candidate's home state is of the President's party, the names may be suggested by the state governor, leaders of the President's party, members of the congressional delegation, or members of his administration. President Carter encouraged all senators to use regional or local panels to gather and submit potential nominees for district courts before making recommendations to him. Some senators still use such panels, although the White House has not recently urged them to do so.

Proposals for appointments to courts of appeals are initiated by an analogous process. Because courts of appeals' geographical jurisdiction is not confined within state lines, as the jurisdiction of a district court is, more senators have a say in these appointments than in appointments of district judges. Senators of the President's party continue to play an important initiating role, but some degree of senatorial courtesy is also extended to other senators in the affected states. President Carter departed from prior practice by issuing an executive order establishing a nationwide commission, with panelists chosen from all states within each circuit to propose nominations. Senators could propose nominees in addition to those proposed by panels. The Reagan administration abolished the commission, relying instead on members of his administration and selected senators to perform the task, a process that more nearly resembled the practices before President Carter.

When potential nominees have been reduced to a short list, the candidates are screened by the Department of Justice and discussed with key senators and with leaders of the congressional delegation of the President's party. The Federal Bureau of Investigation is directed to search the background of potential nominees to discover evidence that might disqualify the candidate or embarrass the administration. Further screening is usually done by White House personnel to whom the President has delegated that task.

If all these preliminary tests look positive, the names on the short list will be submitted to the American Bar Association's Standing Committee on Federal Judiciary to test their professional qualifications. Committee rankings of district and circuit judge nominees are self-explanatory: "exceptionally well qualified," "well qualified," "qualified," and "not qualified." The rating system for Supreme Court nominees describes the candidates as "well qualified," "not opposed," and "not qualified." In committee parlance, "not opposed" means that the nominee is considered barely qualified. Presidents do not have to accept these ratings, but it is rare that a nomination has been forwarded to the Senate when the candidate has received poor grades from the Bar Association.

Appointments and tenure of judges to Article I courts do not follow the same scenario. Article I courts display almost as many variations as Charles Darwin's "singular group of finches," and Congress has adapted the system to each of the jurisdictional environments in which these courts sit. Even a partial taxonomy of Article I courts reveals their jurisdictional diversity: the district courts of the Canal Zone, Virgin Islands, Guam, and Northern Mariana Islands; the High Court of American Samoa; certain administrative agencies with adjudicative powers; the United States court of military appeals; the tax court; the bankruptcy courts; and the local judiciary of the district of columbia. Appointment to these courts is made variously by the President, with or without senatorial confirmation, and, in the instance of the bankruptcy courts, by federal district judges. Judges of these courts serve designated terms in office, rather than having life tenure.

The constitutional legitimacy of Congress's establishing courts other than Article III courts has been repeatedly questioned from the early days of our Republic. The issue first came before the Supreme Court in american insurance company v. canter (1828), testing the constitutionality of Congress's creating territorial courts staffed by judges without life tenure. Chief Justice john marshall, writing for the Court, held that Congress had the power to create "legislative courts," having judges of limited tenure with jurisdiction that was not coextensive with that of Article III courts. Since then, the Court has had second thoughts about the vexing constitutional restrictions on congressional delegation of jurisdiction to adjudicative tribunals that do not have all of the characteristics of Article III courts. Although the former Court of Claims survived constitutional attack when the Supreme Court held that it was a peculiar Article III court in Glidden Co. v. Zdanok (1962), the reorganized bankruptcy courts did not fare so well in northern pipeline co. v. marathon pipe line co. (1982), in which a sharply divided Court struck down part of the legislative grant of jurisdiction to bankruptcy courts as an unconstitutional delegation of Article III jurisdiction.

Although appointments to the federal judiciary are heavily politicized, federal judges are thereafter completely independent of the politics that brought them to the bench, as some Presidents have unhappily learned when their appointees have not followed the philosophies they anticipated. Despite the divorce of the judges from politics, judges and Justices have not always been removed from the political realm. For example, in 1790, Chief Justice john jay and Associate Justice oliver ellsworth temporarily shed their robes to represent the government in treaty negotiations with France and England. Chief Justice william howard taft actively participated in helping President warren g. harding select federal judges, and Chief Justice earl warren in 1962 chaired the commission investigating the assassination of President john f. kennedy. A number of Justices have been continuing confidants of Presidents and assisted them in formulating national policies.

Inevitable tensions are generated between independence and politics because the judiciary depends on Congress to authorize needed judgeships, to pay judicial salaries and authorize and pay for nonjudicial personnel assisting courts, and to provide for courtrooms and courthouses. Justices and judges commonly testify before Congress and write and speak on such issues affecting the judiciary and the administration of justice. Statutes and canons of judicial ethics announce rules designed to avoid collisions between independence and political influences.

Particularly sensitive conflicts are also generated when the need for judicial independence must be balanced against the need to sideline judges who are physically or mentally unable to perform their duties and to discipline errant federal judges short of impeachment. Little controversy has arisen from involuntarily retiring judges for disability. A storm of criticism followed the enactment of the 1980 Judicial Councils Reform and Judicial Conduct and Disability Act, which empowered a panel of judges to investigate complaints against a federal judge accused of "conduct prejudicial to the effective expeditious administration of the business of the courts" and authorized the panel to impose discipline, short of removal from office, if the panel should find wrongdoing. The act was attacked on two grounds: for infringing the constitutional freedom of judges from removal by procedures other than impeachment, and for posing a threat that such disciplinary proceedings could be used to subject judges to reprisals for unpopular decisions. Nonetheless, the statute has been sustained, and the opponents' fears of retaliation have not been realized.

The independence of the judiciary implies more than political neutrality. Numerous statutes, rules, and ethical principles seek to preserve judicial independence by foreclosing parties to litigation and other persons from improperly influencing judicial decisions. With a few carefully guarded exceptions, litigants, their lawyers, and others are forbidden to contact a judge about a pending case without prior permission and without contemporaneously informing all parties and their lawyers about the existence and substance of any such communications. Both civil and criminal penalties are used to punish persons who violate those rules.

Shirley Hufstedler
(1992)

(see also: Appointing and Removal Power, Presidential; Appointments Clause.)

Bibliography

Edwards, Drew E. 1987 Judicial Misconduct and Politics in the Federal System: A Proposal for Revising the Judicial Councils Act. California Law Review 75:1071–1092.

Fowler, W. Gary 1984 Judicial Selection Under Reagan and Carter: A Comparison of Their Initial Recommendation Procedures. Judicature 67:265–283.

Freund, Paul A. 1988 Appointment of Justices: Some Historical Perspectives. Harvard Law Review 101:1146–1163.

Slotnick, Elliot E. 1988 Federal Judicial Recruitment and Selection Research: A Review Essay. Judicature 71:317–324.