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The Problem of Politics and Appointments to the Federal Bench: Looking to England for Guidance in Creating a Less Politicized Process

ELIZABETH ANDERSON∗

ABSTRACT
In recent years, the federal judiciary has found itself the object of anger and vitriol by a public that views it as more political than impartial. Much of the focus on the politics of the judiciary occurs at the nomination stage, because that is when the President and Senate dissect the perceived political leanings of a nominee, and predict how he or she might rule in the future. Although the American nominations process is inherently political, the process seems to have reached a dangerous tipping point, in part because of increased media spotlights and aggressive political grandstanding. Polls show that public confidence in the judiciary is at its lowest in thirty years; and there is a risk that the majority of American people will lose confidence in the judiciary’s ability to faithfully do its job if reform measures are not adopted soon. In reforming the system it is useful to look to England, which recently confronted a similar problem: the public perception that the English judiciary was not independent. After research and analysis, the English decided that a significant part of the problem was the appointments process, and that the solution was to make this process more transparent and diverse going forward. The cornerstone of their reform is the independent Judicial Appointments Commission, which operates to promote diversity on the bench, thus generating increased public

Candidate for Juris Doctor, New England Law | Boston (2013). B.A., History, University of Virginia (2003). I would like to thank: my husband, Trip Anderson, for his constant support; and my siblings, Peter, John, and Colby Tilley, for their inspiration, guidance, and advice. I would also like to thank the members of the New England Law Review for all of their hard work and dedication.

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acceptance. Following England’s lead, the United States should look to reform its own nominations process to improve the public’s perception of the federal judiciary. A similar, independent commission, tweaked in a few places to fit within the United States’s current nominations process, could increase diversity, foster moderation, temper political rhetoric, and ultimately restore public confidence in the federal judiciary.

INTRODUCTION

I

n the 2012 Republican presidential primary race, Republican Presidential Candidate Newt Gingrich made this proposal to an audience of primary voters, to much applause:
“We [will] take back the courts, we [will] rebalance the Constitution, we [will] insist on judges who understand the Constitution. And I can promise you, . . . only people who are dedicated to the original document and its original meaning will get any court appointment at any level.”1

As this statement demonstrates, the federal judiciary has become, in recent years, the target of an angry, vitriolic public that views it as political rather than impartial.2 The public’s view of the judiciary must not deteriorate to such an extent that public support for an independent federal judiciary vanishes.3 Because the members of the federal judiciary are, for the most part, insulated from influence and encroachment once appointed by the President, reforming the perception of politicization must focus on who is appointed to the bench and how they are appointed.4 Currently, the nominations process in the United States is extremely political, and therefore shapes the public’s perception of a politicized judiciary.5 In attempting to reform the nominations process, the United States should look to England for guidance.6 England recently responded to similar

1 Mark Halperin, Gingrich Values Voter Summit Transcript, TIME (Oct. 8, 2011), http://thepage.time.com/2011/10/08/gingrich-values-voter-summittranscript/#ixzz1dieCQM19. 2 Sandra Day O’Connor, Foreword to CHARLES GARDNER GEYH, WHEN COURTS AND CONGRESS COLLIDE: THE STRUGGLE FOR CONTROL OF AMERICA’S JUDICIAL SYSTEM, at viii-ix (2006). 3 4 5 6

See id. at x-xi. See infra Part I.B.1. See infra Part II.A. See John W. Whitehead & John M. Beckett, A Dysfunctional Supreme Court: Remedies and a

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public-perception concerns and has found the response rewarding thus far.7 Through much research and analysis, England determined that establishing an independent Judicial Appointments Commission to promote diversity and enhance quality of appointments is integral to engendering greater public confidence in the judiciary.8 A similar independent commission, tweaked slightly to accommodate the United States nomination process, could ultimately increase diversity, foster moderation, downplay political rhetoric, and restore public confidence in the federal judiciary. Part I of this Note provides an overview of England’s judicial appointments process and its recent reform, as well as the current judicial nominations process for the United States. Part II discusses the increased politicization of the United States federal judiciary—focusing on the nominations process in particular—and how this increased politicization has affected public trust in the judiciary. Part III describes how to integrate an independent commission similar to England’s into the current United States nominations process. Part IV enumerates the potential benefits of a new Judicial Nominations Commission in the United States, focusing on how that commission will reduce political partisanship. I. The Judicial Nominations Process A. The United Kingdom Judicial Appointments Process 1. The Process Prior to 2005 and the Need for Reform

Before 2005, the Lord Chancellor, a member of the Prime Minister’s cabinet, had almost exclusive control over judicial appointments in England.9 More often than not, the nomination process was both informal and opaque.10 The Lord Chancellor would select an individual from a

Comparative Analysis, 4 CHARLESTON L. REV. 171, 211 (2009). See id. MINISTRY OF JUSTICE APPOINTMENTS AND DIVERSITY: ‘A JUDICIARY FOR THE 21ST CENTURY’ 8-9 (2011) [hereinafter APPOINTMENTS AND DIVERSITY REPORT], available at https://consult.justice.gov.uk/digital-communications/judicial-appointments-cp19-2011 (scroll down to “File”; then follow “Report on response to consultation on Appointments and Diversity: A Judiciary for the 21st Century"); Mary L. Clark, Judges Judging Judicial Candidates: Should Currently Serving Judges Participate in Commissions to Screen and Recommend Article III Candidates Below the Supreme Court Level?, 114 PENN ST. L. REV. 49, 61 (2009).
8 9 Judith L. Maute, English Reforms to Judicial Selection: Comparative Lessons for American States?, 34 FORDHAM URB. L.J. 387, 396 (2007). 10 7

Id.

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small pool of eminently qualified people: men who were either barristers or of the Queen’s Counsel, and whose established social status roughly matched that of the Lord Chancellor.11 For the most part, older white men from privileged backgrounds comprised the resulting judiciary.12 The Lord Chancellor rarely, if ever, considered solicitors whose schooling did not conform to that of barristers and whose ranks included many women and minorities.13 Not surprisingly, over the last few decades of the twentieth century this practice engendered much criticism, including “concerns of cronyism, risks of partisanship or other bias, and lack of public accountability.”14 Additionally, the lack of diversity was often glaring, prompting Lady Hale15 to remark upon the importance of establishing “a court [that] reflects the diversity of the legal population, not only in professional and social background, but also in gender and ethnicity.”16 This questioning of the status quo coincided with a series of government reforms under the direction of the New Labour movement.17 These reforms included the passage of the Human Rights Act of 1998, by which the United Kingdom adopted most of those rights outlined by the European Convention on Human Rights (“ECHR”).18 Two important features of this Act affected the English judiciary: (1) English courts would be required to enforce international human rights law; and (2) the Act effectively incorporated Article 6(1) of the ECHR, which provided for a fair
11 See id. (“It was done in smoke-filled rooms of gentlemen’s clubs or in the Temple corridors. Lawyers were appointed to be judges after the right word in the ear . . . [w]hom you knew counted; as did your college or school.”).

Id. at 401-02. Id. at 397-98, 402. It is also important to note here that the first female Law Lord, i.e., the equivalent of a Supreme Court Justice, was not appointed until 2003—more than twenty years after the appointment of Sandra Day O’Connor to the U.S. Supreme Court as the first female Justice. HOUSE OF LORDS, HOUSE OF LORDS BRIEFING: JUDICIAL WORK (2008) [hereinafter BRIEFING], available at http://www.parliament.uk/documents/lords-informationoffice/hoflbpjudicial.pdf.
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Maute, supra note 9, at 398. Lady Brenda Hale, appointed in 2003, is the sole female Law Lord and has been outspoken about the lack of diversity and marked sexism present in the country’s judiciary. First Female Law Lord Appointed, BBC NEWS (Oct. 24, 2003, 06:51 GMT), http://news.bbc.co.uk/2/hi/uk_news/3210003.stm.
15 16 Monica A. Fennell, Emergent Identity: A Comparative Analysis of the New Supreme Court of the United Kingdom and the Supreme Court of the United States, 22 TEMP. INT’L & COMP. L.J. 279, 285 (2008). 17 See James Hyre, Comment, The United Kingdom's Declaration of Judicial Independence: Creating a Supreme Court to Secure Individual Rights Under the Human Rights Act of 1998, 73 FORDHAM L. REV. 423, 424-26 (2004). 18

14

Id.

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hearing before an independent and impartial judiciary.19 The English judiciary had always maintained a reputation in the international community for impartiality and objectivity.20 However, the New Labour Party was aware of the public perception in England of a “good old boys” judiciary, headed by a Lord Chancellor whose parallel duties in the executive and legislative branches posed potential conflicts of interests.21 Consequently, the party looked to make permanent changes to better align the judiciary with the ideals set out by the ECHR.22 2. The Constitutional Reform Act of 2005

Parliament enacted the Constitutional Reform Act of 2005 (“CRA”) primarily to separate the branches of the government, and to enhance the perception of an independent and impartial judiciary by enacting measures aimed at transparency and diversity.23 The CRA provided three overarching measures: (1) the establishment of a supreme court separate from the House of Lords; (2) the establishment of an independent Judicial Appointments Commission; and (3) the reform of the office of the Lord Chancellor, transferring judicial functions to a newly created Lord Chief Justice position.24 In enacting these reforms, Parliament transferred almost all of the power to nominate and appoint a judges from the Lord Chancellor to the newly formed Judicial Appointments Commission.25 The Judicial Appointments Commission is now responsible for finding and selecting candidates to recommend to the Lord Chancellor for appointment.26 The Commission’s primary aim is to make the judicial appointments process “clearer and more accountable.”27 Additionally, the Commission must
19 Id. at 425 & n.10 (“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”). 20 21

Id. at 425.

See id. at 425-26; Diana Woodhouse, United Kingdom: The Constitutional Reform Act 2005— Defending Judicial Independence the English Way, 5 INT’L J. CONST. L. 153, 155 (2007) (noting that the Lord Chancellor from 1997 to 2003 assumed a more visible role in the administration of the government than his predecessors, leading to further questions of legality). 22 Hyre, supra note 17, at 425-26. 23 Fennell, supra note 16, at 282-83. 24 BRIEFING, supra note 13. This Note will focus primarily on the establishment of an independent Judicial Appointments Commission. See infra Parts III, IV. Fennell, supra note 16, at 283-84. Constitutional Reform Act, 2005, c. 4, § 27 sch. (U.K.), http://www.legislation.gov. uk/ukpga/2005/4/pdfs/ukpga_20050004_en.pdf.
26 27 25

available

at

Selection Policy, JUD. APPOINTMENTS COMMISSION, http://jac.judiciary.gov.uk/about-

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fulfill three statutory responsibilities, ensuring that candidates for appointment to the judiciary are (1) selected “solely on merit” rather than social status or connections; (2) people of “good character”; and (3) representative of England’s diverse population.28 One key step to increasing diversity is the composition of the Commission itself.29 Fifteen people spanning a broad spectrum of experience comprise the Commission: one lay person30 serving as Commissioner; two legal professionals (one barrister, one solicitor); five currently serving judges; one tribunal member; one magistrate (otherwise known as a “lay justice”); and five lay people.31 An “open competition” conducted by panels under the Lord Chancellor’s direction appoints all Commission members except the three, currently serving judges.32 A Judges’ Council designated by the Lord Chief Justice recommends the three, currently serving judges for appointment.33 The goal is not to have a representative and advocate from each profession, but instead a collection of individuals who bring different experiences and insights to the table.34 The diverse backgrounds of persons who staff the Commission will likely result in much-needed diversity in the candidates selected for appointment.35 Another pertinent reform stripped the Lord Chancellor of his control over the selection process, leaving him with only a limited role in the judiciary’s appointments (as compared to his almost exclusive role prior to

jac/9.htm (last visited Apr. 10, 2013) [hereinafter Selection Policy]. Many believe that such a Commission is a “marked improvement” over the previous selection process that had contributed to an overall impression of an “old boys’ network” dominating the judiciary. Clark, supra note 8, at 61-62. Selection Policy, supra note 27. Maute, supra note 9, at 391-93. 30 BLACK’S LAW DICTIONARY 968 (9th ed. 2009). The definition of “lay” per Black’s Law Dictionary is: “Not expert, esp[ecially] with reference to law or medicine; nonprofessional.” Id.
29 31 Constitutional Reform Act, 2005, c. 4, § 61, sch. 12, para. 2 (U.K.), available at http://www.legislation.gov.uk/ukpga/2005/4/pdfs/ukpga_20050004_en.pdf. For ease of reference, please note that Schedule 12 begins on page 268. 32 Id. at para. 7-10; Commissioners, JUD. APPOINTMENTS COMMISSION [hereinafter Commissioners], http://jac.judiciary.gov.uk/about-jac/157.htm (last visited May 20, 2013). 28

Constitutional Reform Act, 2005, c. 4, § 61, sch. 12, para. 7-10 (U.K.), available at http://www.legislation.gov.uk/ukpga/2005/4/pdfs/ukpga_20050004_en.pdf; Commissioners, supra note 32. Commissioners, supra note 32. Clark, supra note 8, at 61-62 (explaining that the Commission has the “potential to promote greater competence and representativeness on the bench”).
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the CRA).36 The new reforms charge the Commission with selecting and recommending a candidate to the Lord Chancellor for appointment to the judiciary.37 The Lord Chancellor’s role at this point is limited: he may forward the selection to the Prime Minister for appointment or, if he is unhappy with the recommendation, reject it or request reconsideration.38 The Lord Chancellor may not propose a candidate of his choosing.39 In this way, the Lord Chancellor’s participation in selecting a candidate for appointment is relegated to an executive approval function.40 This is in line with the other CRA reforms aimed at reshaping the Lord Chancellor’s position into an executive post with limited control over the judiciary.41 To many in England, stripping the Lord Chancellor’s power was necessary to counter the increasing power of the Prime Minister and his or her Cabinet over judicial affairs.42 Perhaps even more importantly, limiting the Lord Chancellor’s power was necessary to assure the people of England and the European Union of the English judiciary’s independence.43 B. The United States Federal Judicial Nominations Process 1. The Constitutional Role of the Appointments Clause

In the United States, the judicial branch has been independent since the country’s founding, when it was designated as one of three separate branches of government under the Constitution.44 However, the judiciary’s power is not unchecked; as part of the founding fathers’ overarching vision of checks and balances among the three branches of government, they created the Appointments Clause—Article II, section 2, clause 2 of the United States Constitution.45 The Appointments Clause states that the

Fennell, supra note 16, at 283-84. Constitutional Reform Act, 2005, c. 4, § 28, available at http://www.legislation.gov.uk/ ukpga/2005/4/pdfs/ukpga_20050004_en.pdf.
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Id. § 29; Fennell, supra note 16, at 283. Constitutional Reform Act, 2005, c. 4, § 29, available at http://www.legislation.gov.uk/ ukpga/2005/4/pdfs/ukpga_20050004_en.pdf; Fennell, supra note 16, at 283.
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Fennell, supra note 16, at 287. Id. at 287-88. 42 Clark, supra note 8, at 61. 43 Hyre, supra note 17, at 457 (noting that while the perception of independence is a paramount goal, the judiciary in many ways remains subordinate to Parliament because the CRA did not abolish the doctrine of “parliamentary sovereignty”—i.e., the rule that the judiciary may not overturn Acts of Parliament).
41 44 45

40

See U.S. CONST. art. III. U.S. CONST. art. II, § 2, cl. 2; see Matthew Madden, Anticipated Judicial Vacancies and the

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President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States.”46 Although these words appear straightforward, there are many embedded meanings integral to maintaining separation of power between the three branches of government.47 Understanding the Framers’ point of view at the time of the Constitution’s ratification contributes to an understanding of how firmly rooted the judicial nominations process is in fundamental American constitutional values.48 Some Framers believed that the appointment power should reside with the President alone, rather than with the legislative body.49 Others believed that allowing one person—the President—to hold the power to appoint the federal judiciary would create the potential for great abuse.50 Ultimately, James Madison and Alexander Hamilton convinced their colleagues that the Senate’s ability to check the executive’s appointment power would appropriately mitigate potential abuse.51 At the heart of this compromise was the idea that the explicit checks and balances governing the judicial appointments process would “protect individual rights and liberties through a constitutional structure that resists individual ‘encroachments’ and ‘marjoritarian [sic] ‘impulses.’”52 This check on the judicial department at the appointments level has become increasingly important in the years since the founding because the executive and legislative branches have attempted and failed to employ other, constitutional means to check the judicial branch.53 Once appointed,

Power to Nominate, 93 VA. L. REV. 1135, 1139-42 (2007). U.S. CONST. art. II, § 2, cl. 2. Madden, supra note 45, at 1139-42 (“The careful allocation of appointing powers between the President and the Senate was intended, therefore, to serve as a structural check that would permit the discernment of superior candidates for appointment, balance national and state interests, and guard against the unrestrained exercise of executive power.”).
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See id. at 1142-44. Laura T. Gorjanc, The Solution to the Filibuster Problem: Putting the Advice Back in Advice and Consent, 54 CASE W. RES. L. REV. 1435, 1450 (2004). Founder James Wilson “argued that a ‘single, responsible person’ choosing federal judges is preferred to the legislature because the consequences of appointments by the ‘numerous bodies’ of the legislature would likely be ‘[i]ntrigue, partiality, and concealment.’” Id. 50 Id. 51 See THE FEDERALIST No. 76, at 423-25 (Alexander Hamilton) (Clinton Rossiter ed., 1961); see also Gorjanc, supra note 49, at 1450-51.
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Madden, supra note 45, at 1142-44. See CHARLES GARDNER GEYH, WHEN COURTS AND CONGRESS COLLIDE: THE STRUGGLE FOR CONTROL OF AMERICA’S JUDICIAL SYSTEM 51 (2006). The most traditional of these
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federal judges serve lifetime tenure on the bench, conditional only upon the relatively lenient standard of good behavior.54 This makes it difficult for the executive or legislative branches to exert any type of credible influence over the judiciary after the appointments process is completed.55 Alexander Hamilton and others intended this outcome, as they believed that the judiciary could only be effective in its administration of the laws if independent and appropriately insulated from undue influence by the other branches.56 2. The Present Day Judicial Nominations Process

Following the U.S. Constitution’s bare-bones structure, the appointments process for Article III courts is straightforward: the first step in the process calls upon the President to nominate a judge for a federalcourt appointment.57 The Senate Judiciary Committee then considers the nomination.58 In preparation for a confirmation hearing, the Judiciary Committee solicits information from several sources, including the nominee (via a comprehensive questionnaire); the nominee’s home-state senator (by providing the senator with a “blue slip” on which they can indicate whether or not they agree that the nominee should be recommended to the full Senate);59 and the American Bar Association’s Standing Committee on the Federal Judiciary (which provides ratings
alternative approaches to control are attempts at impeachment and court packing. See Stephen B. Burbank, Judicial Independence, Judicial Accountability, and Interbranch Relations, 95 GEO. L.J. 909, 913 (2007) (explaining that an informal custom, or norm, has arisen over the years whereby the executive and legislative branches “eschew the use of the impeachment process in response to judicial decisions that are unpopular” and “eschew court packing as a means of ensuring decisions in accord with the preferences of the dominant coalition”).
54 See U.S. CONST. art. III, § 1 (“The Judges, both of the supreme and inferior Courts, shall hold their offices during good Behavior.”); THE FEDERALIST NO. 78 (Alexander Hamilton). 55 See, e.g., JEFFREY TOOBIN, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT 6 (2007). Justice John Paul Stevens, appointed to the court by a Republican president in 1975, “charted an independent course from the beginning, moving left as the Court moved right but mostly moving according to his own distinctive view of the Constitution.” Id.

THE FEDERALIST NO. 78, supra note 54. United States Senate Committee on the Judiciary, Judicial Nominations and Confirmations, SENATE.GOV [hereinafter Judicial Nominations and Confirmations], http://www.judiciary.senate. gov/nominations/judicial.cfm (last visited Apr. 10, 2013).
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Id. When the senator does not agree with the recommendation, the senator is essentially allowed to put the nomination “on hold.” See THE MILLER CENTER FOR PUBLIC AFFAIRS, IMPROVING THE PROCESS OF APPOINTING FEDERAL JUDGES: REPORT OF THE MILLER CENTER COMMISSION ON THE SELECTION OF FEDERAL JUDGES 4 (1996) [hereinafter MILLER CENTER REPORT], available at http://web1.millercenter.org/commissions/comm_1996.pdf.
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based on peer-review evaluations).60 The Judiciary Committee then holds a confirmation hearing, which allows Committee members to ask the nominee questions directly.61 After receiving the answers to these questions, the Judiciary Committee, if satisfied, will order a nomination reported to the full Senate for consideration.62 The nominee needs a majority of senators to vote in his or her favor to achieve confirmation.63 3. The Initial Nomination and the Role of Advisory Committees

The President’s initial nomination has its own informal selection process.64 The process usually starts at the Department of Justice, an executive branch agency, where the attorney general’s staff examines a pool of potential federal judges from across the legal and political spectrums.65 The executive branch’s discretion in choosing a nominee varies according to the level of the judiciary in which the vacancy appears; for example, for lower court vacancies, the process often relies upon the advice and recommendations of congressional representatives of the state or states from which the nominee hails.66 However, presidents are not beholden to the home-state senator’s recommendation or advice.67 Rather, presidents have often depended on advice from within their own administration, especially when the appointment is at the appellate level and therefore expected to garner significant attention.68 White House staff and Department of Justice and Federal Bureau of Investigation personnel

Judicial Nominations and Confirmations, supra note 57. Id. 62 Id. 63 Id. 64 WALTER MURPHY & C. HERMAN PRITCHETT, COURTS, JUDGES, & POLITICS: AN INTRODUCTION TO THE JUDICIAL PROCESS 142 (6th ed. 2006). 65 Id. at 143. 66 See Judicial Nominations and Confirmations, supra note 57. It is quite likely that this practice originally was founded on the idea that a president is unlikely to have the requisite familiarity with judges in the various jurisdictions, and those in Congress with greater knowledge could recommend a well-qualified judge; however, over time, it has been a tradition closely adhered to because of the ability of a home-state senator to block the confirmation (via a blue-slip “hold”) of a nominee found unworthy by such senator for any number of reasons. See GEYH, supra note 53, at 211. 67 See GEYH, supra note 53, at 209-10 (describing an appointment made by President George Washington to a federal judicial post in Savannah, Georgia that was postponed by the Senate due to the disapproval of a senator from Georgia).
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MURPHY & PRITCHETT, supra note 64, at 143.

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usually vet potential nominees.69 In addition, starting with President Dwight Eisenhower in 1952, presidential administrations have typically incorporated into the vetting process evaluations compiled by the American Bar Association’s Standing Committee on the Federal Judiciary (the “ABA Committee”).70 By introducing the American Bar Association (“ABA”) into the process, President Eisenhower and his attorney general attempted to reduce instances of judicial appointments, especially to the lower courts, recommended by federal or local lawmakers for purely political reasons— e.g., when the nominee was a particularly good fundraiser—and without considering the nominee’s legal abilities.71 Essentially, the Eisenhower Administration and most of the subsequent presidential administrations have looked to the ABA Committee to fulfill a “semi-official” role in advising the executive as to whether the larger legal community would embrace a potential nominee.72 The peer-review evaluations conducted by the ABA Committee consider three factors: (1) professional competence; (2) integrity; and (3) judicial temperament of the potential nominee.73 Valuation of these factors results in rating a candidate “well qualified,” “qualified,” or “not qualified.”74 As described by both the ABA and the current Senate Judiciary Committee, the ABA Committee’s evaluations are meant to be a neutral analysis of a nominee’s general competence and integrity—not to provide any evaluation of the nominee’s judicial philosophy or political ideology.75 Ideally, the evaluations highlight potential problems with the nomination and address these problems early in the process—before the Senate Judiciary Committee considers the nominee—to prevent needless expenditure of political capital on a nominee who likely will not

See MILLER CENTER REPORT, supra note 59, at 4. See GEYH, supra note 53, at 211; AM. BAR ASS’N, AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON THE FEDERAL JUDICIARY: WHAT IT IS AND HOW IT WORKS 1 (2009) [hereinafter AMERICAN BAR ASSOCIATION STANDING COMMITTEE], available at http://www.americanbar.org/ content/dam/aba/migrated/2011_build/federal_judiciary/federal_judiciary09.authcheckdam.p df.
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MILLER CENTER REPORT, supra note 59, at 10. See MURPHY & PRITCHETT, supra note 64, at 143; Laura E. Little, The ABA's Role in Prescreening Federal Judicial Candidates: Are We Ready to Give Up on the Lawyers?, 10 WM. & MARY BILL RTS. J. 37, 46 (2001).
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AMERICAN BAR ASSOCIATION STANDING COMMITTEE, supra note 70, at 1, 10. Id. 75 AMERICAN BAR ASSOCIATION STANDING COMMITTEE, supra note 70, at 1; Judicial Nominations and Confirmations, supra note 57;.
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successfully pass the Senate’s approval process.76 II. The Current Dilemma: The Perception of Politicization of the U.S. Federal Judiciary Threatens the Strength of the Institution. The increased focus on the federal judiciary’s politics, particularly with respect to the nominations process, has led to a widespread perception among Americans that the judiciary is not impartial, but instead serves special interests.77 This politicization has also resulted in understaffed court systems, crippling the federal judiciary’s ability to hear cases at the ground level.78 If negative public perception and understaffing issues persist, the public may lose its long-held respect and trust in the government’s judicial branch.79 Polling data shows that the American people, for the most part, trust the federal judiciary more than any other government branch; however, numbers indicating public trust in the federal judiciary have plummeted to just sixty-three percent—the lowest percentage in well over thirty years.80 Without the public’s trust, the judiciary risks losing much of its legitimacy and efficacy.81 A. Increased Politicization of the Federal Judiciary Nominations Process Although there are several ways to analyze and explain the recent, increased focus on the politics of the judiciary, this Note will focus on the ways in which politics have impacted the nominations process.82 Charles Geyh notes that the “Senate’s fixation on the decision-making ideology of Supreme Court nominees” began over a century ago, when it was increasingly obvious that other methods of control and accountability would not work.83 Since then, the nominations process has developed into

Little, supra note 72, at 51 (noting that the ABA Committee’s “input can assure that controversy is avoided and consensus is achieved”). See infra Part II.A-B. See infra Part II.A-B. 79 Cf. STEPHEN BREYER, MAKING OUR DEMOCRACY WORK: A JUDGE’S VIEW 1 (2010) (noting that “democratic legitimacy” depends upon public support and trust in Supreme Court decisions, even when they are unpopular).
78 80 Jeffrey M. Jones, Supreme Court Approval Rating Dips to 46%: Down 15 Percentage Points from 2009, GALLUP.COM (Oct. 3, 2011), http://www.gallup.com/poll/149906/Supreme-CourtApproval-Rating-Dips.aspx. 81 See BREYER, supra note 79, at 1 (“The Constitution’s efforts to ensure a workable constitutional democracy mean little if the public freely ignores interpretations of the Constitution that it dislikes.”). 82 83 77

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See infra Part II.A. GEYH, supra note 53, at 208; see supra notes 45-53 and accompanying text.

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a mechanism by which the political branches hold judges prospectively accountable for their decisions.84 The political branches accomplish this by ensuring that nominees harbor similar political and judicial philosophies to the party in the majority, thus reducing the likelihood that “unacceptable” decisions will be made in the future.85 In many ways, the politicization of the nominations process we see today is characterized by the recent, more political role of nongovernmental legal groups in the nominations process.86 Despite asserting a position of neutrality, both conservatives and liberals have questioned the ABA’s ability to provide independent and politically impartial feedback.87 The ABA has recently come under fire for favoring candidates with liberal ideologies and failing to support more conservative candidates solely on ideological grounds.88 At the same time, the executive branch’s vetting process has evolved into a heavily “bureaucraticized” system—one that dedicates several White House and Department of Justice staffers to finding appropriate federal court nominees.89 Consequently, it was unsurprising when George W. Bush’s administration advised the ABA in 2001 that it would not ask for its evaluations during the vetting process.90 The ABA nevertheless provided the Bush Administration with nominee evaluations, but only after the administration decided who to nominate, which many believed stripped the ABA committee of its effectiveness.91 The move was almost entirely political.92 The conservatives populating the Bush Administration were among those who believed the ABA incapable of neutral evaluation, especially when the ABA did not fully support the nomination of Robert Bork—a highly regarded conservative— to the Supreme Court in the late 1980s.93 The Bush Administration did not eschew the advice of outside legal groups altogether; it looked to the
GEYH, supra note 53, at 208. Id. 86 See Sheldon Goldman et al., W. Bush’s Judiciary: The First Term Record, 88 JUDICATURE 244, 251-54 (2005) (noting the Federalist Society influence on Republican nominees to the bench).
85 87 Little, supra note 72, at 57 (“The perception of ABA partisanship is difficult to cure because most ABA decisions on judicial nominees are likely to displease one side of the political spectrum or another.”). 88 R. Townsend Davis, Jr., The American Bar Association and Judicial Nominees: Advice Without Consent?, 89 COLUM. L. REV. 550, 565 & n.113 (1989). 84

MILLER CENTER REPORT, supra note 59, at 4-5. David Stout, Bush Ends A.B.A.’s Quasi-official Role in Helping to Pick Judges, N.Y. TIMES (Mar. 22, 2001), http://www.nytimes.com/2001/03/22/politics/22CND-JUDGES.html.
90 91 92 93

89

See AMERICAN BAR ASSOCIATION STANDING COMMITTEE, supra note 70, at 1. GEYH, supra note 53, at 219-20. Id.

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Federalist Society for evaluations and recommendations for potential judicial nominees.94 The Federalist Society’s role during the Bush Administration exceeded the ABA Committee’s limited role of evaluating potential nominees; the Federalist Society also actively participated in the nominee selection process.95 The Federalist Society is a conservative group that believes in limited government—most notably, “individual liberty, traditional values, and the rule of law.”96 It formed in 1982 to challenge what was perceived to be the established, liberal, legal elite with a “conservative counterelite.”97 The Federalist Society sought to do what many left-leaning groups (such as the American Civil Liberties Union) had already accomplished: to infiltrate law schools, government agencies, public interest law firms, and courts to develop a more conservative legal orthodoxy after the liberal era of the Warren Court.98 As a result, recent Republican presidents (including George W. Bush) have staffed their administrations with Federalist Society lawyers adamant about nominating only credentialed members of the Federalist Society to the federal bench.99 In 2009, with the end of the Bush Administration and the advent of the Democratic Obama Administration, the ABA Committee reclaimed its role in the pre-nomination vetting process, relegating the Federalist Society to the sidelines.100 These battles over conservative- or liberal-leaning nominees have garnered the media spotlight, ensuring the American people’s constant awareness of this-or-that nominee’s political preferences, no matter how

94 See Neil A. Lewis, Bush to Reveal First Judicial Choices Soon, N.Y. TIMES (Apr. 24, 2001), http://www.nytimes.com/2001/04/24/us/bush-to-reveal-first-judicial-choicessoon.html?src=pm. 95 Amanda Hollis-Brusky, Support Structures and Constitutional Change: Teles, Southworth, and the Conservative Legal Movement, 36 LAW & SOC. INQUIRY 516, 528 (2011); Lewis, supra note 94 (“Of the 70 candidates interviewed so far by the White House, officials said 17 to 20 had been recommended directly by the Federalist Society[] . . . .”). 96 About Us: Our Purpose, THE FEDERALIST SOC’Y, http://www.fed-soc.org/aboutus (last visited May 20, 2013).

Hollis-Brusky, supra note 95, at 522. See Hollis-Brusky, supra note 95, at 523-24; Lewis, supra note 94. The liberal-minded Earl Warren served as Chief Justice from 1953 to 1969. LEE EPSTEIN & JEFFREY A. SEGAL, ADVICE AND CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS 38 (2005). 99 Hollis-Brusky, supra note 95, at 526, 529. 100 See AMERICAN BAR ASSOCIATION STANDING COMMITTEE, supra note 70, at 1; Adam Liptak, Legal Group’s Neutrality Is Challenged, N.Y. TIMES (Mar. 30, 2009), http://www.nytimes.com/2009/03/31/us/31bar.html.
98

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obscure the nominee.101 Many special-interest groups, such as political action committees, see the judicial appointments process as “a crucial part of their platform” and enlist a plethora of media tools, such as television advertising, to advocate for or against nominees based on their perceived political leanings.102 These media battles likely influence whether the American people support or repudiate controversial decisions by the federal judiciary.103 B. Effects of Politicization 1. The Perception of a Judicial Elite

When making their reforms, the English recognized that one of the threats to the perception of an impartial judiciary (and therefore a threat to its public acceptance) was that the judiciary seemed to resemble a network of elites unrepresentative of the English people.104 The United States faces a similar threat: the perception of a “good old boys” network.105 This perception manifests in at least two distinct ways.106 First, the federal judiciary is still largely composed of white men.107 This composition persists despite the fact that, since the 1950s, executives have appointed (and Congress has confirmed) more women and racial and ethnic minorities to the federal bench.108 However, this trend has not accelerated quickly enough to keep pace with the changing face of the American people.109 For example, women only account for approximately eighteen
See Hollis-Brusky, supra note 95, at 529; Albert M. Winseman, Americans Judge the Judiciary, GALLUP.COM (July 12, 2005), http://www.gallup.com/poll/17278/americans-judgejudiciary.aspx; This Week on JudicialNominations.org, ACSBLOG (Aug. 12, 2011), http://www.acslaw.org/acsblog/this-week-on-judicialnominationsorg-23. 102 See Winseman, supra note 101. For example, a major goal for conservative Christian groups is to keep “activist judges” from appointment to the federal bench. Id. See id. See Clark, supra note 8, at 61-62. 105 See, e.g., Deborah R. Hensler, Studying Gender Bias in the Courts: Stories and Statistics, 45 STAN. L. REV. 2187, 2188-89 (1993) (referencing the term “good old boy” in connection with privileged white males). 106 See infra notes 104-11 and accompanying text. 107 RUSSELL WHEELER, THE CHANGING FACE OF THE FEDERAL JUDICIARY 1 (2009), available at http://www.brookings.edu/~/media/research/files/papers/2009/8/federal%20judiciary%20whe eler/08_federal_judiciary_wheeler.pdf.
104 103 101

Id. Compare LINDSAY M. HOWDEN & JULIE A. MEYER, U.S. CENSUS BUREAU, AGE AND SEX COMPOSITION: 2010, at 2 (May 2011), available at http://www.census.gov/prod/cen2010/briefs/ c2010br-03.pdf, and SONYA RASTOGI ET AL., U.S. CENSUS BUREAU, THE BLACK POPULATION: 2010, at 3 (2011), available at http://www.census.gov/prod/cen2010/briefs/c2010br-06.pdf, with
109

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percent of appointees to the federal bench,110 although they comprise slightly more than half the population.111 The second way in which the “good old boy” network perception persists is via increased scrutiny regarding whether the Supreme Court (and by extension, the federal judiciary) answers to the people as a whole, or serves to bolster either the conservative or liberal establishment.112 Criticisms of the Ninth Circuit’s recent decision in Perry v. Brown, upholding the right to same-sex marriage in California,113 exemplify media attacks that accuse courts of ruling based on political agenda rather than law.114 This heightened concern that federal courts cater to certain political agendas is illustrated by a recent Gallup poll in which only a plurality (forty-two percent) of Americans thought that the Supreme Court’s decisions were “about right” ideologically, while twenty percent felt the decisions were “too conservative” and thirty-one percent viewed them as “too liberal.”115 2. Politics Are Crippling the Nomination Process.

Because the nominations process is the legislative branch’s primary mode of prospective control over the judiciary, there are many contentious battles in the Senate over confirmation of presidential nominees.116 These battles entail the use of the filibuster, by the opposing party, to block confirmation of the presidential nominee, usually on ideological grounds— e.g., when a Republican president is in office, Democrats will filibuster to block confirmation of the presidential nominee, and vice-versa when a Democratic president is in office.117 Although the filibuster is vital to the

WHEELER, supra note 107, at 1. 110 WHEELER, supra note 107, at 1. 111 HOWDEN & MEYER, supra note 109. 112 See O’Connor, supra note 2, at vii; GEORGE W. BUSH, DECISION POINTS 100-01 (2010) (noting that the conservative establishment rejected one judicial nominee because the nominee did not attend an Ivy League school or “run in elite legal circles”). 671 F.3d 1052, 1063-64 (9th Cir. 2012). See, e.g., Carrie Severino, The Ninth Circuit’s Attack on Self Government, NATIONAL REVIEW ONLINE: BENCH MEMOS (Feb. 8, 2012, 11:34 AM), http://www.nationalreview.com/content/ninth-circuits-attack-self-government(attacking the ruling as a product of liberal, activist judges).
114 113

Jones, supra note 80. See supra note 53 and accompanying text; Judge Not: Vacancies Have Accumulated Fast in Barack Obama’s First Two Years, THE ECONOMIST, Dec. 9, 2010 [hereinafter Judge Not], available at http://www.economist.com/node/17679549.
116 117 Catherine Fisk & Erwin Chemerinsky, In Defense of Filibustering Judicial Nominations, 26 CARDOZO L. REV. 331, 331, 333-34 (2005).

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minority party’s ability to check the power of the executive branch and the majority party,118 minority parties have employed the filibuster more than ever in the last few years due to increased partisanship.119 The result is a significant number of vacancies on the federal bench.120 These vacancies pose a seriou problem: federal courts around the country are overwhelmed due to staffing shortages, resulting in thousand-case pileups in some jurisdictions.121 Yet nominations continue to crawl through the Senate’s final-vote phase, and the Senate often puts nominations on hold for significant stretches of time.122 This trend has worsened over the past thirty years, evidenced by the Senate’s confirmation of only fifty-eight percent of President Obama’s nominees at the end of his First Congress as compared to ninety-six percent for President George H.W. Bush.123

ANALYSIS
III. Addressing the Root of the Politicization Problem: An Independent Judicial Nominations Committee for the United States The United States can follow England’s exemplary solution to the crisis of an overly politicized judiciary.124 However, the United States cannot
See id. at 337. Hamm, Brian R.D., Modifying the Filibuster: A Means to Foster Bipartisanship While Reigning In Its Most Egregious Abuses, 40 HOFSTRA L. REV. 735, 735-36, 759; see ALLIANCE FOR JUSTICE, THE STATE OF THE JUDICIARY: PRESIDENT OBAMA AND THE 111TH CONGRESS 6 (2011) [hereinafter 111TH CONGRESS], available at http://www.afj.org/judicial-selection/state_of_ the_judiciary_111th_congress_report.pdf (noting that the 112th Congress identified filibuster reform as a way to end the obstruction of judicial nominees).
119 120 See, e.g., Matt Viser, As Obama, Senate Collide, Courts Caught Short, BOSTON GLOBE (Mar. 10, 2013), http://www.bostonglobe.com/news/nation/2013/03/10/obama-senate-collidegridlock-hits-federal-courts/zQVtUmOSol9sHre7OuX3MP/story.html; Bruce Moyer, April 2012: Sizing Up Obama’s Record on Judicial Nominations, THE FEDERAL LAWYER (Apr. 2012), http://www.fedbar.org/Advocacy/Washington-Watch/WW-Archives/2012/April-2012.aspx. 121 See Judge Not, supra note 116 (noting that the United States Court for the Eastern District of California has a thousand-case pileup and the District of Delaware, where so much corporate litigation is waged, is making do with just two federal judges). 122 See Andrew Cohen, The Congress We Deserve, THE ATLANTIC (Aug. 7, 2011), http://www.theatlantic.com/politics/archive/2011/08/the-congress-we-deserve/243217/; see also Editorial, A Judicial Breakthrough: In a Hopeful Sign, Republicans in the Senate Agree to Vote on 14 Nominees to the Federal Bench, L.A. TIMES, Mar. 18, 2012, at A27, available at 2012 WLNR 5765234 (describing a recent agreement between Senate Democrats and Republicans to vote on fourteen judicial nominees whose confirmations were significantly delayed for partisan reasons). 123 124 118

111TH CONGRESS, supra note 119, at 20. Maute, supra note 9, at 423.

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adopt the English model without some necessary changes, as there are a few major differences between the American and English governments.125 Nevertheless, a U.S. Judicial Nominations Commission inspired by England’s JAC could effectively recommend and evaluate judges for the federal bench during the pre-nomination process.126 A. Why the English Judicial Appointments Commission Is Unique to England The JAC is comprised of two lawyers, seven judicial officers, and six lay people.127 The judicial members give the judiciary a measurable voice in screening and selecting future members.128 The JAC also insulates the judiciary from the overt influence of the Lord Chancellor, a member of the Prime Minister’s cabinet, by eliminating his selection privileges and leaving him with only veto authority.129 Selecting judges without major input from the other government branches works in England because of the traditional, longstanding balance of powers in the English government and the crucial role played by parliamentary sovereignty—i.e., Parliament says what the law is and courts may not overturn legislation.130 Therefore, establishing an independent JAC to select judges does not equate to an independent, unchecked judiciary; rather, the government’s legislative branch constrains the judiciary through parliamentary sovereignty.131 In the United States, a balance of powers among the three branches of government is integral to the workings of the political system.132 In some respects, the balance of power among the three, co-equal branches of the United States government differs significantly from the balance of power in the United Kingdom.133 For example, the principle of parliamentary sovereignty does not exist in the U.S.; instead, courts are ruled by the
See infra Part III.A. See infra Part III.B. 127 See Commissioners, supra note 32. Note that the JAC technically has five judicial members, one tribunal member, and one lay justice member. Id. For the purposes of this Note, all seven are considered judiciary members.
126 125

See Clark, supra note 8, at 59-61; supra Part I.A.2. See supra notes 36-38 and accompanying text. 130 Hyre, supra note 17, at 432. 131 Id. 132 See 16A AM. JUR. 2D Constitutional Law § 239 (2012). The current set-up for nominating and appointing judges to the federal judiciary is intrinsic to the separation of powers doctrine, which ensures that no branch goes unchecked and protects the American people from governmental abuses of power. See id.
129 133 See Hyre, supra note 17, at 469-71 (comparing the merits of the American system of judicial review versus the entrenched English system of parliamentary sovereignty).

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principle of judicial review.134 Supreme Court Justice Stephen Breyer described “judicial review” as a reference “generally to the fact that the Court has the power to strike down a statute as incompatible with the Constitution in a particular case,” a power that gives the judicial branch the ability to check the power of the executive and legislative branches.135 Because of judicial review, the legislative and executive branches in the United States cannot check the judiciary’s power with the legislative process; indeed, the only real way for the legislative and executive branches to check the federal judiciary’s power is through the nominations and appointments processes.136 Therefore, to remove the appointments power almost entirely from the executive and legislative branches, leaving it in the hands of a group heavily influenced by the judiciary itself (as the English have done), would compromise the current balance of power.137 Rather than translating the English model exactly, the United States should adjust it to accommodate the current balance of power among the three branches of government.138 B. Adapting the English Judicial Appointments Commission for Use in the United States: A Proposed Judicial Nominations Commission 1. Make-Up of the Proposed Judicial Nominations Commission

Instead of seven judicial members, the United States should appoint four executive-branch representatives and three legislative-branch representatives, ensuring that the political branches still heavily influence the nominations process.139 The remaining members—two lawyers and six lay people, with one lay person serving as the Commissioner (just like the English model)—will temper the likely partisan behavior of the political members.140 Reflecting the relatively recent trend to involve the ABA Committee or the Federalist Society in advising presidential

Id. at 469-70. BREYER, supra note 79, at 10. 136 See supra Part I.B.1. 137 See Whitehead & Beckett, supra note 6, at 218. Cf. Clark, supra note 8, at 77 (noting that separation of powers principles would not be violated as long as the executive and legislative branches are free to discard any recommendations made by commissions).
135

134

See infra Part III.B. See supra Part I.B.1. The executive branch should have one more representative than the legislative branch because the President has more influence on the process under the Constitution, which says that he acts to appoint judges “with the advice and consent” of the Senate. See U.S. CONST. art. II, § 2, cl. 2.
139 140

138

See Commissioners, supra note 32.

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administrations in nominee selection, one lawyer from each organization should be represented on the proposed Judicial Nominations Commission.141 Finally, as with the English model, the lay members should be various upstanding and accomplished individuals from the business community’s for- and non-profit sectors; legal academia; the public policy realm; and state and local government.142 2. Selection and Term Limits for the Proposed Judicial Nominations Commission

A number of critical points relate to how this type of Commission would work.143 The first is who would be responsible for “picking the pickers”—i.e., the commissioners.144 A four-person panel appointed by both the Lord Chancellor (representing the executive branch) and Lord Chief Justice (representing the judicial branch) selects the members of the JAC in England.145 This will not work in the United States where, to preserve the balance of powers, the legislature and executive collaborate without judicial involvement in matters of judicial appointment.146 Instead, the President and a legislative-branch representative, preferably the Senate Judiciary Committee Chair, should select the four-person panel.147 The four-person panel’s intended role is to mitigate direct political influence on the selection of commissioners and, by extension, on the recommendations and evaluations of the commissioners themselves.148 To ensure that no

141 See supra Part II.A; Constitutional Reform Act, 2005, c. 4, § 61, sch. 12, para. 2(4) (U.K.), available at http://www.legislation.gov.uk/ukpga/2005/4/pdfs/ukpga_20050004_en.pdf (noting that the commission should have one lawyer from each of the two separate professions). 142 See Maute, supra note 9, at 413-14 (noting that the lay members of the JAC may not include current civil servants due to risk of political pressure); Commissioners, supra note 32 (describing the professions of the many members, which include an academic mathematician; a director and chairman of profitable companies; and a former employee of the Ministry of Defence).

See infra Parts III.B.2-4. Maute, supra note 9, at 411. 145 Constitutional Reform Act, 2005, c. 4, § 61, sch. 12, para. 8 (U.K.). 146 See supra Part III.A. 147 Cf. Clark, supra note 8, at 77 (finding that separation of powers would not be implicated because the other branches are free to reject recommendations by a panel made up of members from the judicial branch). Although this assertion by Ms. Clark is valid, this Note is premised on the idea that both the legislature and executive’s involvement in the nomination process is critical in order to provide some sort of control over an otherwise very independent judiciary. See supra note 53 and accompanying text.
144 148 See History, JUD. APPOINTMENTS COMMISSION, http://jac.judiciary.gov.uk/aboutjac/156.htm (last visited May 20, 2013) (noting that the set-up of the JAC enhances

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single panel member develops too much power or influence over time, the President and Senate Judiciary Committee Chair should convene panels in the United States on an as-needed basis—only when a vacancy on the Commission arises—just as in England.149 For the same reasons, each commissioner’s term should be limited to no more than five consecutive years, or ten years if the commissioner serves non-consecutive terms.150 3. Placement of the Proposed Judicial Nominations Commission

The next issue is where the proposed Judicial Nominations Commission will fit into the existing nominations process, since it is clear that the Commission cannot independently and exclusively select and recommend nominees, as in England.151 Academics that have looked to England’s recent reforms for guidance believe that an independent commission modeled after the JAC would function best as an advisory committee to the Senate Judiciary Committee, poised to provide feedback regarding a President’s nominee.152 This is not a workable solution because, by the time the President recommends a nominee to the Senate Judiciary Committee, he or she has invested significant political capital in that nominee.153 The nominee’s name becomes public,154 and the media will likely report any disagreements over the nominee’s qualifications, leading to discord and accusations of partisanship.155 For example, George W. Bush nominated Harriet Miers—who was neither screened by the ABA

accountability and public confidence in the system by taking the process out of the hands of a single Government Minister). See Constitutional Reform Act, 2005, c. 4, § 61, sch. 12, para. 7 (U.K.). Cf. id. at para. 13. 151 See Whitehead & Beckett, supra note 6, at 218; supra Part III.A. 152 See Whitehead & Beckett, supra note 6, at 218-19. 153 See Little, supra note 72, at 73 & n.158 (“[When the ABA Committee] was consulted around the same time a name was submitted to the Senate, the organization could not be a really effective advisor because political commitments had already been made and the ABA could not assist the attorney general in making delicate choices among candidates with varying qualifications, all of whom were sponsored by prominent politicians.”) (internal quotations omitted).
150 154 See, e.g., United States Senate Committee on the Judiciary, Judicial Nomination Materials: 113th Congress, http://www.judiciary.senate.gov/nominations/Materials113thCongress.cfm (last visited Apr. 10, 2013). 155 See, e.g., Bill Mears, Obama Judicial Nominees Likely to Reignite Controversy, CNN (Jan. 4, 2013), http://www.cnn.com/2013/01/03/justice/obama-judges (reporting on disagreements between Senate Republicans on Democrats on certain federal judicial nominees); 149

supra note 99 and accompanying text.

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Committee, nor approved by the Federalist Society—to the Supreme Court.156 She abruptly withdrew her nomination after bitter attacks from both sides of the aisle regarding her qualifications.157 For any advisory committee to significantly impact the nominations process, the committee will likely need to work directly with the presidential administration to determine nominee’s selection.158 This conclusion is based, in part, on the Bush Administration’s excise of the ABA Committee from the pre-nomination vetting process and the ABA Committee’s subsequent evaluation of the nominees submitted to the Senate Judiciary Committee—even after the administration had made its nomination decision.159 As some remarked in the wake of the ABA Committee’s banishment from the pre-nomination vetting process, people contacted for information regarding nominees are less likely to honestly assess the nominee once the nomination becomes public.160 Additionally, the potential effectiveness of the ABA Committee’s evaluations is seriously diminished when relegated to a point in the process where the nomination is public and there exists an “inevitability of the appointment.”161 Therefore, the proposed Judicial Nominations Commission must be part of the pre-nomination process to actually affect changes to the current system.162 4. Remit of the Proposed Judicial Nominations Commission

In defining the proper remit of the proposed Judicial Nominations Commission, it is useful to look to England’s JAC, the ABA Committee, and the Federalist Society under the Bush Administration for guidance.163

156 Elisabeth Bumiller & Carl Hulse, Bush’s Court Choice Ends Bid; Conservatives Attacked Miers, N.Y. TIMES (Oct. 28, 2005), http://www.nytimes.com/2005/10/28/politics/politicsspecial1/ 28confirm.html?fta=y (“Her decision forces President Bush to scramble for a new nominee at a time of growing disarray at the White House”); see BUSH, supra note 112, at 100-01; HollisBrusky, supra note 95, at 526. 157 Bumiller & Hulse, supra note 156; see BUSH, supra note 112, at 100-01; Hollis-Brusky, supra note 95, at 526. 158 See Goldman et al., supra note 86, at 255 (finding that the ABA Committee’s new role during the Bush Administration—evaluator of nominees after they have been named by the President—may have robbed the ABA of “any major significance in the process”). 159 Id. 160 Id. (“[When] people don’t get asked about nominations until they’re public . . . [it] has to have a serious chilling effect on people being totally honest with the ABA about concerns they may have.”). 161 162 163

Little, supra note 72, at 68 & n.159. See supra Part III.B.3. See Whitehead & Beckett, supra note 6, at 218-19; infra text accompanying notes 164-69.

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The Judicial Nominations Commission, like the JAC and Federalist Society, should play a role in selecting candidates by recommending potential nominees to the President.164 As in England, the President should be able to reject any recommendations he deems unsuitable.165 In contrast to the English model, the President of the United States should also maintain the prerogative to independently select his or her own nominee.166 The presidential power to voluntarily appoint federal judges under Article II should neither be significantly reduced nor stripped because this power is a historically important part of the executive’s role in maintaining checks and balances among the three branches of government.167 Where the President has his own nominee in mind, the proposed Judicial Nominations Commission should fulfill the ABA Committee’s current role by: (1) providing a neutral, independent evaluation of the potential nominee; (2) detailing the candidate’s strengths and weaknesses; and (3) projecting the likelihood of the candidate’s confirmation.168 The proposed Judicial Nominations Commission is preferable to the ABA Committee because evaluations performed by the Judicial Nominations Commission would not be tainted by implications of political partisanship, a problem identified in connection with ABA Committee evaluations.169 Finally, in providing recommendations and evaluations, the proposed Judicial Nominations Commission should focus on the potential nominee’s merit—not his or her social status or political connections; the potential nominee’s character; and locating nominees who will capably represent the diverse population of the United States.170 IV. Potential Benefits of a Proposed Judicial Nominations Commission Supplanting the ABA Committee or Federalist Society with the proposed Judicial Nominations Commission would significantly decrease
See Woodhouse, supra note 20, at 155; supra notes 94-95 and accompanying text. See Woodhouse, supra note 20, at 155. 166 See BUSH, supra note 112, at 100-01 (describing his nomination of Harriet Miers to the Supreme Court as a personal decision). Contra Maute, supra note 9, at 396.
165 167 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155 (1803); Madden, supra note 45, at 1143-44. 168 See Little, supra note 72, at 50-51 (“As an expert—albeit outside voice—the ABA is often able to anticipate problems with potential nominations.”). 169 See id. at 38-39 (“The ABA’s explicitly controversial positions have surely contributed to its public relations problems and have magnified suspicions that the ABA uses judicial evaluations to implement policy objectives under the whitewash of ‘judicial fitness.’”). 170 Cf. Selection Policy, supra note 27 (recommending candidates based on merit, good character, and diversity that reflect the population); AMERICAN BAR ASSOCIATION STANDING COMMITTEE, supra note 70, at 1, 9-10. 164

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the perception of the federal judiciary’s politicization.171 Currently, a group with overt political leanings advises and influences the President and Senate regarding nominations to the federal bench.172 In contrast, an independent, diverse, and ever-changing Judicial Nominations Commission can evaluate and recommend representatives from across the political spectrum and representative of the American people generally.173 A. Increased Diversity Will Reduce the Perception of a Judicial Elite. One of the ways in which England has sought to boost public confidence in the judiciary is through a focus on greater diversity—both traditional (race, gender, ethnicity) and non-traditional (background, experience, ideology).174 England focuses on diversity so that the English people are adequately represented within the judiciary.175 In the limited time since the JAC was established, England has seen an increase in diversity on the bench.176 The English government hopes this development will continue because research shows that increased diversity decreases negative perceptions of the judiciary among various minority groups.177 In the United States, many legal observers agree that a federal judiciary that “look[s] more or less like the population it serves” and reflects that population’s ideas and values would likely gain more public support and acceptance.178 Seventh Circuit Court of Appeals Judge Richard Posner, in defending his case for “the judge as the occasional legislator,” recognizes that public acceptance of the judiciary would improve if the “body politic”

See infra Part IV. See supra Part II.A. 173 See APPOINTMENTS AND DIVERSITY REPORT, supra note 8, at 8; Clark, supra note 8, at 6162; supra Part III.B.
172 174 See APPOINTMENTS AND DIVERSITY REPORT, supra note 8, at 3 (“A judiciary which is visibly more reflective of society will enhance public confidence in the justice system.”); Woodhouse, supra note 20, at 155-56 (explaining how Britain created greater judicial independence by installing the Judicial Appointment Committee).

171

See APPOINTMENTS AND DIVERSITY REPORT, supra note 8, at 3; Woodhouse, supra note 20, at 155-56.
176 See APPOINTMENTS AND DIVERSITY REPORT, supra note 8, at 7; Whitehead & Beckett, supra note 6 (reporting on data from the JAC). 177 See APPOINTMENTS AND DIVERSITY REPORT, supra note 8, at 8. 178 WHEELER, supra note 107, at 9-10 (noting that although the face of the federal judiciary has changed over the years, it still does not provide an accurate reflection of the American public and therefore more needs to be done); see, e.g., CASS R. SUNSTEIN ET AL., ARE JUDGES POLITICAL? 135-37 (2006) (suggesting that diverse viewpoints can function as a check on extreme movements); Whitehead & Beckett, supra note 6, at 182 (pointing out that Supreme Court holdings are, to some extent, undermined by the Court’s lack of diversity).

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simply “insist[ed] on greater diversity in appointments in order to make the [courts] more representative, so that [their] occasional legislating will tend to track the preferences of the official legislators.”179 Judge Posner also points out that, like the democratic process, ideological judging most effectively benefits the constituency when it is tempered and does not result in decisions at the extremes of the political spectrum.180 For example, when a three-judge panel consists of judges who all subscribe to the same or similar ideology, the panel tends to produce a more polarized opinion.181 On the other hand, panels of judges with differing ideologies and experiences tend to moderate the resulting majority opinion—the majority will temper opinions reflecting ideological extremes to facilitate a unanimous opinion, which on the court-of-appeals level is often desired.182 Research suggests that only by forcing judges to confront and defend ideological critiques can a generally acceptable middle ground—though not truly “independent,” as some idealists would like— be reached.183 Thus, the more diverse the federal bench, the more likely it is that the public will embrace the role of the judiciary and therefore validate its decisions by implementation at the local level.184 Diversity’s noted impact on public perception is why the proposed Judicial Nominations Commission’s focus on diversity should rebut negative stereotypes of judges as political actors or representatives of an elite, “good old boys network.”185 This would be true for nominees in the media spotlight as well as judges serving on the bench, because nominees will be more difficult to attack based on an identifiable political agenda when a neutral, independent Judicial Nominations Commission conducts the selection, or otherwise provides a positive evaluation of the nominee’s qualifications.186 B. Nominees Vetted by an Independent Judicial Nominations Commission Will Likely Lead to Decreased Use of the Filibuster and

RICHARD A. POSNER, HOW JUDGES THINK 87 (2008). See id. at 33-34. 181 See id.; SUNSTEIN ET AL., supra note 178, at 135. 182 See POSNER, supra note 179, at 33-34; SUNSTEIN ET AL., supra note 178, at 135. 183 See SUNSTEIN ET AL., supra note 178, at 135. 184 See VALERIE J. HOEKSTRA, PUBLIC REACTION TO SUPREME COURT DECISIONS 153 (2003); Whitehead & Beckett, supra note 6, at 211.
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See supra Part II.B.1. See supra notes 101-02 and accompanying text; see, e.g., Hollis-Brusky, supra note 95, at 529 (finding that the Federalist Society credentials of John Roberts and Samuel Alito likely influenced the conservative media campaigns in support of their nominations to the Supreme Court).
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Swifter Confirmations. The same arguments supporting the theory that judicial-panel diversity will yield more moderate decisions can also be applied to groups such as the Judicial Nominations Commission.187 If the Judicial Nominations Commission is diverse in that it is composed of representatives spanning the American political spectrum, then selected and approved nominees will often be more moderate than some of the arguably extreme nominees advanced by recent presidential administrations.188 Moderate nominees sanctioned by an independent commission will, in turn, more willingly cooperate with both sides of the political spectrum, thus making the minority political party less likely to resort to the filibuster to block nominees’ confirmation.189 Moreover, the presence of an independent Judicial Nominations Commission will allow for the possibility of reducing bureaucratization in the current nominations process, since the Commission supplants executive-branch staffers currently dedicated exclusively to that purpose.190 Any reduction of executive-agency involvement due to greater influence from an independent committee will further depoliticize the Senate confirmation process because nominees will be perceived as more representative of the public’s best interest rather than the political agenda advanced by the present administration.191 This also ensures that nominees are, first and foremost, exceptionally qualified for the federal bench, rather

See SUNSTEIN ET AL., supra note 178, at 135. See supra text accompanying notes 180-84. Compare Fisk & Chemerinsky, supra note 117, at 334 (citing the extremely conservative nominees by President Bush as a reason why the filibuster was used so frequently by Democrats during his term), with Paul Campos, Why Can’t Obama Get His Judges Approved?, THE DAILY BEAST (Nov. 28, 2011, 12:14 PM), http://www.thedailybeast.com/articles/2011/11/28/why-can-t-obama-get-his-judgesapproved.html (noting that conservatives believe President Obama’s judicial nominees are less qualified because he sacrifices quality in order to advance an affirmative-action agenda).
188 189 See Fisk & Chemerinsky, supra note 117, at 334; see, e.g., John Anthony Maltese, Confirmation Gridlock: The Federal Judicial Appointments Process Under Bill Clinton and George W. Bush, 5 J. APP. PRAC. & PROCESS 1, 14 (2003) (“The choice is this: nominate reasonable, moderate men and women who belong on the bench and we’ll confirm them right away. Nominate ideologues . . . and you’ll have a fight on your hands. It’s that simple.”); Quinn Bowman, Republicans Block Vote on Obama Judicial Nominee Goodwin Liu, PBS NEWSHOUR: THE RUNDOWN BLOG (May 19, 2011, 3:33 PM), http://www.pbs.org/newshour/rundown/2011/05/ republicans-block-vote-on-obamas-judicial-nominee.html (noting the Republican opposition to the nominee stems from the perception that he is an “ideologue”).

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See MILLER CENTER REPORT, supra note 59, at 4-5. See Lewis, supra note 94 (discussing appointments to the bench in terms of advancing the administration’s political agenda); supra Part IV.A.
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than simply politically expedient.192 The selection of highly qualified nominees is critical: even nominees who harbor ideological tendencies that differ from the Senate majority are unlikely to encounter strong opposition during the confirmation process if they are highly qualified.193

CONCLUSION
The current system of nominating and confirming potential judges to the federal bench is inherently political. The politicking is necessary to some extent, because it facilitates constitutional checks and balances among the three governing branches. However, the process has recently reached a tipping point where politicization gives rise to serious legitimacy issues regarding the judicial branch. Today’s overly politicized judicial nominations process jeopardizes the American people’s confidence in the judiciary to neutrally evaluate the law and provide efficient, effective access to the legal system. Looking to England for guidance and inspiration is useful. A modified version of their independent Judicial Appointments Commission would nicely complement the existing nominations process in the United States. Employing the English model with some modifications would promote greater diversity on the bench and minimize the destructive use of the filibuster, thus fostering greater confidence in the judiciary as a whole.

See supra text accompanying note 170. See David R. Straus & Ryan W. Scott, Navigating the New Politics of Judicial Appointments, 102 NW. U. L. REV. 1869, 1899-1901 (2008) (“[I]t is fair to speculate that Samuel Alito may have faced a filibuster or an unfavorable Senate vote had he not served previously with distinction as a Third Circuit judge, United States Attorney, and Supreme Court advocate in the Solicitor General's office.”).
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