Nepotism in the Federal Judiciary

Abstract:     
American aversion to nepotism can be traced back to the Revolutionary Era and its hostility to a hereditary monarchy. Today anti-nepotism policies remain popular in both the private and public employment settings, yet family ties are nonetheless common in elective or appointive political offices. In judicial offices, particularly at the federal level, such ties are not very common, but there have been a few examples of family ties, and there is a federal statute which limits the appointment of family members to the same federal court. Those instances, and the statute, are the subject of this Essay.

The Essay discusses how the heretofore obscure federal statute came to prominence during the debate over one of President Clinton's judicial nominees and how the statute was amended during that debate to make its anti-nepotism component more explicit. The Essay addresses whether the statute is constitutional in light of separation of powers and the President's authority to appoint federal judges. Relatedly, it evaluates the policy concerns of the statute and discusses in greater detail two pairs of closely related federal judges who served on the same court: first cousins Learned and Augustus Hand on the United States Court of Appeals in the Second Circuit, and brothers Richard and Morris Shepard Arnold on the Eighth Circuit. This Essay concludes with some observations on the desirability of anti-nepotism rules in the judicial context.

Keywords: Federal Courts, Nepotism, Judicial Nominees, Judges

JEL Classifications: K40, K41

Accepted Paper Series