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Abstract: This article examines the merits of federal judges testifying at others' Supreme Court confirmation hearings. Interest in this project was prompted by the testimony of seven of Samuel Alito's then-current and former Third Circuit colleagues at his hearing to be Associate Justice.
The judges' testimony at Justice Alito's hearing was unprecedented in degree and kind. Because the Alito hearing testimony involved a significant expansion in number and status of judges testifying at another's judicial confirmation hearing, this practice should be examined now before it can be repeated.
Supreme Court Confirmation Hearings, Judicial Independence, Judicial Ethics
Abstract: In the lead-up to the 2008 presidential election, the American Bar Association (ABA), among others, called upon the next president to reform the federal judicial selection process by using bipartisan commissions to screen and recommend Article III candidates for presidential nomination and Senate confirmation below the Supreme Court level. This proposal may well find support in the Obama administration, given the new president’s emphasis on bipartisan consensus-building and transparency of government operations. This Article addresses one question that the ABA and others have not: Should currently serving judges participate in bi-partisan commissions to screen and recommend Article III candidates below the Supreme Court level, just as judges commonly do for state court, other federal court, and other nations’ court appointments? This Article answers “no.” Judges should not serve on Article III screening commissions because the harms of doing so outweigh any potential benefits. More specifically, judicial service on Article III screening commissions raises concerns principally for: (1) undue accretion of power by judges and attendant threats to judicial integrity and impartiality; and (2) negative impacts on bench diversity. These concerns are explored in the discussion that follows.
Federal judicial selection, judicial screening commissions
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