99 Pages Posted: 9 Aug 2012
Date Written: May 24, 2012
The nomination process for federal judges is broken. The problem is acute in the trial courts: At the recent pace of new appointments, the federal district bench will be almost half empty within a decade. Given where this is headed, how can we get back on track?
This article proposes to address the failing district judge nomination process by breaking it apart from the process for circuit judges. To date, the Senate has procedurally treated the 861 Article III judgeships on lower courts (all judgeships other than those on the Supreme Court) as a block. For most of the last century, that worked fine while neither circuit nor district judgeships attracted much public interest or partisan debate. But, as the 179 circuit judgeships have received greater political attention — witness the failed circuit nominations of John Roberts (1992), Elena Kagan (1999), Miguel Estrada (2001), and Goodwin Liu (2010) — the historic norms that allowed a smooth flow of confirmations have changed to keep many judgeships empty for prolonged periods. Because the machinery of confirmation is shared for circuit and district judges, those new norms also have been applied to the process for filling 673 district judgeships. The result has been needless and harmful delay. Lawyers and political leaders alike understand that the jobs of district judges — and the stakes for those who depend on the courts — are different. I therefore propose to treat their nomination process differently.
This article explores the failing state of the district judge nomination process (Part I) and synthesizes the history of its development (Part II). With that background, the article proposes a package for reform of the district judge process (Part III) consisting of: (1) public listing by the administration of the status of Senators’ recommendations to discourage delay as a bargaining tool in selections; (2) a distinct public questionnaire for district judges limited to questions on legal experience; (3) elimination of the routine Senate committee hearing on nominations; and (4) a mechanism for expedited consideration on the Senate floor.
Keywords: Judicial Nominations, District Judges, Senate Confirmations
Suggested Citation: Suggested Citation
Shenkman, Michael L., Decoupling District from Circuit Judge Nominations: A Proposal to Put Trial Bench Confirmations on Track (May 24, 2012). 65 Ark. L. Rev. 217 (2012). Available at SSRN: https://ssrn.com/abstract=2126693