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Memo on Judicial Nominating Commissions

From:  Samuel Morse, Fix the Court Law Clerk
To:      State Bar Associations, Senate Staff and Government Transparency Organizations
Re:      Judicial Nominating Commissions
Date:   November 6, 2018

A Judicial Nominating Commission comprises a bipartisan group of lawyers and, often, non-lawyers that is tasked with identifying the candidates U.S. senators will recommend to the President to fill vacancies in either U.S. District Courts, U.S. Courts of Appeals or both.

Several states also use nominating commissions to assist governors in filling judicial vacancies, either because these states do not elect their judges, or a vacancy has arisen in a non-election year.

JNCs reflect the idea that judicial systems should be made up of those who exhibit the best interests and values of society. While the ultimate decision rests with the executive, it is essential that the people play a role in the initial selection of those who are fit for judicial service, especially at the federal level where such appointments are made for life.

At a time when faith in the judiciary is faltering, Fix the Court believes that widespread, if not universal, use of commissions at the federal level should be considered as a means to increase the legitimacy of these lifetime appointments and ensure that the individuals whom the president nominates are well-qualified, well-respected and deserving of the nomination based on merit and not political connections.

Traditionally, JNCs have done well in recommending nominees whose character, experience, ability and commitment to equal justice under law qualify them to serve in the federal judiciary. There are several features that make a JNC a desirable way to fill federal court vacancies:

1. Lack of Partisanship: A JNC made up of an equal member of Republicans and Democrats means that each party has a say in determining who the nominees are. Rather than outsourcing the job of identifying potential nominees to the state party or other ideological groups, a group made up of people with opposite partisan leanings promotes consensus, which enhances legitimacy.

2. Formalizes the Process: Vacancies on district and appeals courts occur frequently. JNCs ensure that the mechanism to identify and vet nominees is always functioning and does not have to be restarted each time a vacancy occurs. A JNC will also ensure that anyone is able to apply for a judgeship, and nominees are not limited to those who are the most well-connected. Many JNCs accept applications and conduct interviews with applicants on a continual basis, ensuring a rolling list of nominees can be forwarded to senators.

3. Counters the Influence of Elites and Insiders: Naturally, if a senator does not know who to recommend to the president, he or she will likely defer to donors, friends and those with whom they have an established relationship. JNCs not only enable senators to recommend the most qualified nominees, but they also dispense with the notion that one must be politically connected or wealthy to enter into service in the federal judiciary. Although the most qualified are often times also the most well connected, the JNC serves as an extra level of insulation against attacks on the legitimacy of the judiciary.

4. Ensures Basic Qualifications: All those who are nominated and find themselves before the Senate Judiciary Committee should at the very least be competent as to the work required to be a district or appeals court judge. There is no sense in putting forth a nominee who is unqualified. A JNC, unlike the Senate Judiciary Committee, may evaluate individuals without respect to time allotted for questioning or political pressures. Moreover, an JNC will be able to counteract partisans in Congress who don’t represent the mainstream within their party.

Although there is no way legislatively to require that U.S. senators consider the recommendations of a JNC, opposition to a properly constituted JNC could have electoral consequences, as a JNC can and should be seen as operating as the voice of the people. Refusal to honor the recommendations of a JNC would be an affront to democratic processes and the notion of an apolitical judiciary. While JNCs are by no means a one-stop fix, it is a simple measure that can be easily implemented to boost faith in the judiciary.

Since our federal judiciary is independent, concerns about accountability of federal judges must be addressed before they are confirmed. With the Senate’s role limited to the advice and consent of the president’s preferred nominee, JNCs are in an excellent position to more extensively evaluate qualifications. Most of the president’s nominees for seats on the federal bench are confirmed, so an argument stands to be made that nomination is a higher hurdle, and thus more important than confirmation itself.

Another attractive feature of several existing JNCs is that there’s often a public listing of the members who comprise the commission. The Florida JNC and the Virginia Judicial Candidate Evaluation Committee do an exceptional job of making available the members of the commission and their contact information, as well as information about the commission in general. The list of members of the Wisconsin JNC is also public. For state judgeships, in addition to Virginia and Florida, the Alaska Judicial Council, the Connecticut Judicial Selection Commission and the Georgia Judicial Nominating Commission also maintain a public list of members and information on how the commission operates.

One final point: JNCs may be the only policy preference that unites Sarah Palin and Jimmy Carter; the former used them in her brief stint as Alaska governor to help her fill state judgeships, and the latter advocated for them to be instituted at the federal level during his presidency. That says a lot.

Fix the Court stands ready to assist in the establishment of senatorial JNCs (and state-based ones, as well), as the organization firmly favors the adoption and implementation of any plan that will increase the legitimacy, and reduce the politicization, of the judiciary.

We look forward to working with you in our collective endeavor to strengthen public confidence in the judiciary, and in government as a whole.

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