May 2008

Judicial Nominations: Can We Improve the Process?

Whoever becomes president-elect in November will be faced with the perennial challenge of how to evaluate, nominate, and confirm top judges to the federal trial and appellate benches. The Section of Litigation is cosponsoring, with the Standing Committee on Judicial Improvements Judicial Nomination Task Force, a resolution that addresses this issue. The proposed resolution (to be considered by the ABA House of Delegates in August) makes specific recommendations to current federal judges, the Senate, and the president—all designed to end the undue divisiveness that has for years characterized the nomination process.

First, the resolution supports the practice of federal judges providing advance notice of their intention to leave active service to facilitate the timely nomination of individuals to vacant judgeships.

Second, the resolution encourages the senators in each state jointly (in cooperation with others not of their party when appropriate) to appoint bipartisan commissions of lawyers and other leaders, reflecting the diversity of the profession and the community, to evaluate the qualifications of prospective district judges and to recommend possible nominees whom their senators might suggest for the president’s consideration.

Third, the resolution endorses the use of bipartisan commissions to consider and recommend prospective nominees for the U.S. Courts of Appeals.

Finally, the resolution calls for expedition in the entire process and recommends that the president consult with Senate leaders of both parties and the home state senators in advance of submitting nominations. This will inform the president’s nominating process and promote the Senate’s exercise of its authority to determine whether to consent to the nominations.

The point of the proposed resolution is to put in place a fair and balanced process that will result in the appointment of impartial and competent judges who are essential to the rule of law. If adopted as ABA policy, the Section will be in a position this fall to advocate for this approach with the incoming administration and with the Senate.

Judith A. Miller
Chair, Section of Litigation