"Law: Here Come the Judges"
From Time Magazine
Monday, December 11, 1978
Who should choose them—and how?
Under U.S. law, the President picks federal judges with the advice and consent of the Senate. Under a practice known quaintly as senatorial courtesy, the process has traditionally worked the other way around. A Senator can blackball a nominee to the federal bench in his home state simply by returning a "blue slip" to the Senate Judiciary Committee. Senate colleagues invariably honor the blue slip, so Presidents long ago learned to let Senators do the choosing.
Not Jimmy Carter. Federal judges are too important to be political plums, Carter argued in his 1976 presidential campaign, and should be selected on the basis of "merit" alone. How? By appointing panels of lawyers and laymen to suggest qualified nominees. By whom is the final choice made? The President, of course.
The questions of who should pick federal judges and how merit should be made the standard have never been as hotly debated or as important as now. Last October Congress passed the Omnibus Judgeship Act, creating 152 new federal judgeships, the largest one-shot increase ever. Given normal turnover on the bench, half of the nation's 643 federal appeals and district judges will owe their jobs to Carter by the end of his term in 1980. Says Leonard Janofsky, American Bar Association president-elect: "No modern American President has had such an opportunity to mold the shape and character of the law in our justice system."
That is, if Congress lets him. Even before Carter took office, he got Mississippi's formidable James Eastland, then chairman of the Senate Judiciary Committee, to agree that federal appeals judges should be nominated by merit commissions. Eastland also promised that his committee would go along with the President's choices. But he balked when it came to the more numerous federal district judges. Instead of a Mississippi commission coming up with five names for a judgeship and the President choosing one, Eastland reportedly told Attorney General Griffin Bell: "I'll hand you a slip of paper with one name on it, and that'll be the judge."
Carter was left trying to persuade individual Senators to set up merit commissions. So far, Senators in 18 states have agreed. The Omnibus Judgeship Act empowers the Administration to establish "standards and guidelines" for choosing federal district judges. But as Attorney General Bell cautions, "They're not mandatory. It's more of a friendly persuasion operation."
A growing number of Senators are neither friendly nor persuaded. Missouri's Thomas Eagleton named three Missourians, without any merit commission and without inviting applications, despite Carter's urging of an open process. Carter and the Senate Judiciary Committee are left in an awkward position: If the Administration does not accept Eagleton's nominees, will the Judiciary Committee follow senatorial courtesy and reject anyone that Carter nominates instead for the Missouri spots? Says Bell: "Well, we plan to have a talk with the Senator." Virginia's Harry Byrd dutifully followed the open process by appointing two panels to nominate candidates for four new judgeships. The commission chose ten white males, prompting Associate Attorney General Michael Egan to point to a guideline that urges more blacks and women for the bench. Byrd stood by his list. Texas Senator Lloyd Bentsen refused to appoint a central nominating committee to consider candidates, preferring to rely on the advice of several different groups. Yet he paid close heed to Texas demographics: his ten choices include two women, one Mexican American and one black. Maryland's Senator Paul Sarbanes flatly refused to use any commissions. Though he invited "suggestions" from the public, Sarbanes proclaimed that he had the responsibility to "advise" the President by making the nominations himself. Editorialized the Washington Post: That's not "advising," that's "telling."
Perhaps the most articulate Senate critic of the commission system is Illinois' Adlai Stevenson, who also refused to follow Carter guidelines. The problem, according to Stevenson, is not in finding qualified people, but persuading them to accept the hard work and financial sacrifice of being a judge. Says Stevenson: "Great judges don't answer newspaper advertisements. They have to be sought out, and commissions can't do that."
Stevenson's warnings are borne out in part by the workings of one model nominating commission, that of Senator Edward Kennedy, the Judiciary Committee's new chairman. Few doubt the qualifications of the nominees picked last week by Kennedy's Massachusetts commission: a Harvard law professor, two state superior court judges (one is black) and a woman lawyer. But some desirable candidates dropped out when told they had to appear before the commission; they did not want to expose themselves to public scrutiny and possible rejection.
Stevenson argues that even though a Senator may not be the ideal person to choose a judge, any legislator at least represents and is accountable to the people. Besides, the quality of the present Senator-chosen federal bench is generally high, and some of the nation's most distinguished jurists had been politically active (including Hugo Black, Charles Evans Hughes, Louis Brandeis and John Marshall). Nor is politics ever going to be entirely expunged from judicial selection. The record of Democrat Jimmy Carter's own Administration is proof enough: of the 66 judges appointed since he took office, two are Republicans.