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96 Judicature 296 (2012-2013)
Federal Judicial Selection in History and Scholarship

handle is hein.journals/judica96 and id is 296 raw text is: FEDERAL JUDICIAL


The American Judicature Society was a relative latecomer to the federal judicial
selection process, focusing on state judicial selection issues for much of the
twentieth century. In recent decades, however AJS has taken on a leadership role in
the efforts toward merit-based selection of federal judges, diversifying the federal
bench, and tracking the influence of external interests on the federal judiciary


The process for appointing federal
judges is prescribed in the Consti-
tution, and for most of American
history federal judicial selection has
proceeded straightforwardly. Presi-
dents made nominations quickly;
the Senate rejected very few judicial
nominees. Confirmation was once
so certain, in fact, that in the late
1970s, the public interest organiza-
tion Common Cause referred deri-
sively to the U.S. Senate as a rubber
stamp   machine for Presidents'
nominees. Even in the contempo-
rary era, relatively few judicial nomi-
nees have been rejected, although
the amount of time nominees wait
between nomination and confirma-
tion has increased significantly in
recent history. The Congressional

Research Service reports that just
19 of more than 2,500 nominations
to the U.S. district court and courts
of appeals were rejected between
1939 and 2009, and even fewer lower
court nominees were rejected or
withdrawn during the nineteenth
century.' Nominations to the U.S.
Supreme Court have always been
somewhat more controversial, but
nearly 80 percent of Supreme Court
nominations have been confirmed
since 1789.3
The process's general efficiency
and the rarity of judicial misconduct
(there have been only seven removals
of federal judges through impeach-
ment and Senate trial in U.S. history)
meant that the federal judicial selec-
tion process was largely excluded

from the judicial reform movements
that swept legal circles during both
the nineteenth and twentieth cen-
turies. Similarly, the federal judicial
selection process was not generally a
subject of significant concern to legal
1. common Cause. The Senate Rubber Stamp
Machine (1977).
2. However, several judicial nominees in
recent years have withdrawn themselves rather
than continue to wait for years to be confirmed.
See: Denis Steven Rutkus and Susan Navarro
Smelcer, US Circuit and District Court Nomina-
tions: Senate Rejections and Committee Votes
Other Than to Report Favorably 1939-2009, CRS
Report for Congress. Available online at: http://
www.fas.org/sgp/crs/misc/R40470.pdf. Last
accessed April 28, 2013.
3. Henry H. Hogue, Supreme Court Nominations
Not Confirmed, 1989-2007 CRS Report for Con-
gress. Available online at: http://www.fas.org/
sgp/crs/misc/RL31.171,pdf. Last accessed April
26, 2013. (20081

296 JUDICATURE *  MAY / JUNE 2013 *  VOL 96 NO 6

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