E. Anderson: The Problem of Politics and Appointments to the Federal Bench

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The Problem of Politics andAppointments to the Federal Bench:Looking to England for Guidance inCreating a Less Politicized Process

ELIZABETH ANDERSON

ABSTRACT

In recent years, the federal judiciary has found itself the object of angerand vitriol by a public that views it as more political than impartial. Muchof the focus on the politics of the judiciary occurs at the nomination stage,because that is when the President and Senate dissect the perceivedpolitical leanings of a nominee, and predict how he or she might rule in thefuture. Although the American nominations process is inherently political,the process seems to have reached a dangerous tipping point, in partbecause of increased media spotlights and aggressive politicalgrandstanding. Polls show that public confidence in the judiciary is at itslowest in thirty years; and there is a risk that the majority of Americanpeople will lose confidence in the judiciarys ability to faithfully do its job ifreform measures are not adopted soon.

In reforming the system it is useful to look to England, which recentlyconfronted a similar problem: the public perception that the Englishjudiciary was not independent. After research and analysis, the Englishdecided that a significant part of the problem was the appointmentsprocess, and that the solution was to make this process more transparentand diverse going forward. The cornerstone of their reform is theindependent Judicial Appointments Commission, which operates topromote 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 Englands lead, the United States should look to reform itsown nominations process to improve the publics perception of the federal

judiciary. A similar, independent commission, tweaked in a few places tofit within the United Statess current nominations process, could increasediversity, foster moderation, temper political rhetoric, and ultimatelyrestore public confidence in the federal judiciary.

INTRODUCTION

n the 2012 Republican presidential primary race, RepublicanPresidential Candidate Newt Gingrich made this proposal to anaudience of primary voters, to much applause:

We [will] take back the courts, we [will] rebalance theConstitution, we [will] insist on judges who understand the

Constitution. And I can promise you, . . . only people who arededicated to the original document and its original meaning willget any court appointment at any level.1

As this statement demonstrates, the federal judiciary has become, inrecent years, the target of an angry, vitriolic public that views it as politicalrather than impartial.2 The publics view of the judiciary must notdeteriorate to such an extent that public support for an independent federaljudiciary vanishes.3

Because the members of the federal judiciary are, for the most part,insulated from influence and encroachment once appointed by thePresident, reforming the perception of politicization must focus on who isappointed to the bench and how they are appointed. 4 Currently, the

nominations process in the United States is extremely political, andtherefore shapes the publics perception of a politicized judiciary.5 Inattempting to reform the nominations process, the United States shouldlook 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-summit-

transcript/#ixzz1dieCQM19.2 Sandra Day OConnor, Foreword to CHARLES GARDNER GEYH, WHEN COURTS AND

CONGRESS COLLIDE: THE STRUGGLE FOR CONTROL OF AMERICAS JUDICIAL SYSTEM, at viii-ix

(2006).3 See id. at x-xi.

4 See infra Part I.B.1.5 See infra Part II.A.6 SeeJohn W. Whitehead & John M. Beckett,A Dysfunctional Supreme Court: Remedies and a

I


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2013 Creat ing a Less Pol i t i c ized Process 655

public-perception concerns and has found the response rewarding thusfar.7

Through much research and analysis, England determined that

establishing an independent Judicial Appointments Commission topromote diversity and enhance quality of appointments is integral toengendering greater public confidence in the judiciary.8 A similarindependent commission, tweaked slightly to accommodate the UnitedStates nomination process, could ultimately increase diversity, fostermoderation, downplay political rhetoric, and restore public confidence inthe federal judiciary.

Part I of this Note provides an overview of Englands judicialappointments process and its recent reform, as well as the current judicialnominations process for the United States. Part II discusses the increasedpoliticization of the United States federal judiciaryfocusing on thenominations process in particularand how this increased politicization

has affected public trust in the judiciary. Part III describes how to integratean independent commission similar to Englands into the current UnitedStates nominations process. Part IV enumerates the potential benefits of anew Judicial Nominations Commission in the United States, focusing onhow that commission will reduce political partisanship.

I. The Judicial Nominations Process

A. The United Kingdom Judicial Appointments Process1. The Process Prior to 2005 and the Need for Reform

Before 2005, the Lord Chancellor, a member of the Prime Ministerscabinet, had almost exclusive control over judicial appointments in

England.9 More often than not, the nomination process was both informaland opaque.10 The Lord Chancellor would select an individual from a

Comparative Analysis, 4 CHARLESTON L.REV.171, 211 (2009).7 See id.8 MINISTRY OFJUSTICE APPOINTMENTS AND DIVERSITY:AJUDICIARY 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).

9 Judith L. Maute, English Reforms to Judicial Selection: Comparative Lessons for AmericanStates?, 34 FORDHAM URB.L.J.387, 396 (2007).

10 Id.


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small pool of eminently qualified people: men who were either barristersor of the Queens Counsel, and whose established social status roughlymatched that of the Lord Chancellor.11 For the most part, older white men

from privileged backgrounds comprised the resulting judiciary.12

The LordChancellor rarely, if ever, considered solicitors whose schooling did notconform to that of barristers and whose ranks included many women andminorities.13 Not surprisingly, over the last few decades of the twentiethcentury this practice engendered much criticism, including concerns ofcronyism, risks of partisanship or other bias, and lack of publicaccountability.14 Additionally, the lack of diversity was often glaring,prompting Lady Hale15 to remark upon the importance of establishing acourt [that] reflects the diversity of the legal population, not only inprofessional and social background, but also in gender and ethnicity. 16

This questioning of the status quo coincided with a series ofgovernment reforms under the direction of the New Labour movement.17

These reforms included the passage of the Human Rights Act of 1998, bywhich the United Kingdom adopted most of those rights outlined by theEuropean Convention on Human Rights (ECHR).18 Two importantfeatures of this Act affected the English judiciary: (1) English courts wouldbe required to enforce international human rights law; and (2) the Acteffectively incorporated Article 6(1) of the ECHR, which provided for a fair

11 See id. (It was done in smoke-filled rooms of gentlemens 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.).12 Id. at 401-02.13 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 2003more than twenty yearsafter the appointment of Sandra Day OConnor 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-information-

office/hoflbpjudicial.pdf.14 Maute, supra note 9, at 398.15 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 countrys 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.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.INTL &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, 73FORDHAM L.REV.423, 424-26 (2004).

18 Id.


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hearing before an independent and impartial judiciary.19 The Englishjudiciary had always maintained a reputation in the internationalcommunity for impartiality and objectivity.20 However, the New Labour

Party was aware of the public perception in England of a good old boysjudiciary, headed by a Lord Chancellor whose parallel duties in theexecutive and legislative branches posed potential conflicts of interests.21Consequently, the party looked to make permanent changes to better alignthe 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 theperception of an independent and impartial judiciary by enacting measuresaimed at transparency and diversity.23 The CRA provided threeoverarching measures: (1) the establishment of a supreme court separate

from the House of Lords; (2) the establishment of an independent JudicialAppointments Commission; and (3) the reform of the office of the LordChancellor, transferring judicial functions to a newly created Lord ChiefJustice position.24

In enacting these reforms, Parliament transferred almost all of thepower to nominate and appoint a judges from the Lord Chancellor to thenewly formed Judicial Appointments Commission.25 The JudicialAppointments Commission is now responsible for finding and selectingcandidates to recommend to the Lord Chancellor for appointment.26 TheCommissions primary aim is to make the judicial appointments processclearer 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 Id. at 425.

21 See id. at 425-26; Diana Woodhouse, United Kingdom: The Constitutional Reform Act 2005

Defending Judicial Independence the English Way, 5 INTLJ.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.25 Fennell, supra note 16, at 283-84.

26 Constitutional Reform Act, 2005, c. 4, 27 sch. (U.K.), available athttp://www.legislation.gov. uk/ukpga/2005/4/pdfs/ukpga_20050004_en.pdf.

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


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fulfill three statutory responsibilities, ensuring that candidates forappointment to the judiciary are (1) selected solely on merit rather thansocial status or connections; (2) people of good character; and (3)

representative of Englands diverse population.28

One key step to increasing diversity is the composition of the

Commission itself.29 Fifteen people spanning a broad spectrum ofexperience comprise the Commission: one lay person30 serving asCommissioner; two legal professionals (one barrister, one solicitor); fivecurrently serving judges; one tribunal member; one magistrate (otherwiseknown as a lay justice); and five lay people.31 An open competitionconducted by panels under the Lord Chancellors direction appoints allCommission members except the three, currently serving judges.32 AJudges Council designated by the Lord Chief Justice recommends thethree, currently serving judges for appointment.33 The goal is not to have arepresentative 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 likelyresult in much-needed diversity in the candidates selected forappointment.35

Another pertinent reform stripped the Lord Chancellor of his controlover the selection process, leaving him with only a limited role in thejudiciarys 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 61-62.28 Selection Policy, supra note 27.29 Maute, supra note 9, at 391-93.30 BLACKS LAW DICTIONARY 968 (9th ed. 2009). The definition of lay per Blacks Law

Dictionary is: Not expert, esp[ecially] with reference to law or medicine; nonprofessional. Id.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).33 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.

34 Commissioners, supra note 32.35 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 andrecommending a candidate to the Lord Chancellor for appointment to thejudiciary.37 The Lord Chancellors role at this point is limited: he may

forward the selection to the Prime Minister for appointment or, if he isunhappy with the recommendation, reject it or request reconsideration.38The Lord Chancellor may not propose a candidate of his choosing.39 In thisway, the Lord Chancellors participation in selecting a candidate forappointment is relegated to an executive approval function.40

This is in line with the other CRA reforms aimed at reshaping the LordChancellors position into an executive post with limited control over thejudiciary.41 To many in England, stripping the Lord Chancellors powerwas necessary to counter the increasing power of the Prime Minister andhis or her Cabinet over judicial affairs.42 Perhaps even more importantly,limiting the Lord Chancellors power was necessary to assure the people ofEngland and the European Union of the English judiciarys

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 thecountrys founding, when it was designated as one of three separatebranches of government under the Constitution.44 However, the judiciaryspower is not unchecked; as part of the founding fathers overarching visionof checks and balances among the three branches of government, theycreated the Appointments ClauseArticle II, section 2, clause 2 of theUnited States Constitution.45 The Appointments Clause states that the

36 Fennell, supra note 16, at 283-84.37 Constitutional Reform Act, 2005, c. 4, 28, available at http://www.legislation.gov.uk/

ukpga/2005/4/pdfs/ukpga_20050004_en.pdf.38 Id. 29; Fennell, supra note 16, at 283.39 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 283.40 Fennell, supra note 16, at 287.41 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 sovereigntyi.e., the rule that the

judiciary may not overturn Acts of Parliament).44 See U.S.CONST. art. III.45 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 theSenate, shall appoint . . . Judges of the supreme Court, and all otherOfficers of the United States.46 Although these words appear

straightforward, there are many embedded meanings integral tomaintaining separation of power between the three branches ofgovernment.47 Understanding the Framers point of view at the time of theConstitutions ratification contributes to an understanding of how firmlyrooted the judicial nominations process is in fundamental Americanconstitutional values.48

Some Framers believed that the appointment power should reside withthe President alone, rather than with the legislative body.49 Others believedthat allowing one personthe Presidentto hold the power to appoint thefederal judiciary would create the potential for great abuse.50 Ultimately,James Madison and Alexander Hamilton convinced their colleagues thatthe Senates ability to check the executives appointment power would

appropriately mitigate potential abuse.51

At the heart of this compromisewas the idea that the explicit checks and balances governing the judicialappointments process would protect individual rights and libertiesthrough a constitutional structure that resists individual encroachmentsand marjoritarian [sic] impulses.52

This check on the judicial department at the appointments level hasbecome increasingly important in the years since the founding because theexecutive and legislative branches have attempted and failed to employother, constitutional means to check the judicial branch.53 Once appointed,

Power to Nominate, 93 VA.L.REV. 1135, 1139-42 (2007).46 U.S.CONST. art. II, 2, cl. 2.47 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.).48 Seeid. at 1142-44.49 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.

52 Madden, supra note 45, at 1142-44.53 See CHARLES GARDNER GEYH, WHEN COURTS AND CONGRESS COLLIDE: THE STRUGGLE

FOR CONTROL OF AMERICAS JUDICIAL SYSTEM 51 (2006). The most traditional of these


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federal judges serve lifetime tenure on the bench, conditional only uponthe relatively lenient standard of good behavior.54 This makes it difficult forthe executive or legislative branches to exert any type of credible influence

over the judiciary after the appointments process is completed.55

AlexanderHamilton and others intended this outcome, as they believed that thejudiciary could only be effective in its administration of the laws ifindependent and appropriately insulated from undue influence by theother branches.56

2. The Present Day Judicial Nominations Process

Following the U.S. Constitutions bare-bones structure, theappointments process for Article III courts is straightforward: the first stepin the process calls upon the President to nominate a judge for a federal-court appointment.57 The Senate Judiciary Committee then considers thenomination.58 In preparation for a confirmation hearing, the Judiciary

Committee solicits information from several sources, including thenominee (via a comprehensive questionnaire); the nominees home-statesenator (by providing the senator with a blue slip on which they canindicate whether or not they agree that the nominee should berecommended to the full Senate);59 and the American Bar AssociationsStanding 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.56 THE FEDERALIST NO.78, supra note 54.57 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).58 Id.59 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 aconfirmation hearing, which allows Committee members to ask thenominee questions directly.61 After receiving the answers to these

questions, the Judiciary Committee, if satisfied, will order a nominationreported to the full Senate for consideration.62 The nominee needs amajority of senators to vote in his or her favor to achieve confirmation. 63

3. The Initial Nomination and the Role of AdvisoryCommittees

The Presidents initial nomination has its own informal selectionprocess.64 The process usually starts at the Department of Justice, anexecutive branch agency, where the attorney generals staff examines apool of potential federal judges from across the legal and politicalspectrums.65 The executive branchs discretion in choosing a nomineevaries according to the level of the judiciary in which the vacancy appears;

for example, for lower court vacancies, the process often relies upon theadvice and recommendations of congressional representatives of the stateor states from which the nominee hails.66 However, presidents are notbeholden to the home-state senators recommendation or advice.67 Rather,presidents have often depended on advice from within their ownadministration, especially when the appointment is at the appellate leveland therefore expected to garner significant attention.68 White House staffand Department of Justice and Federal Bureau of Investigation personnel

60 Judicial Nominations and Confirmations, supra note 57.61 Id.62 Id.63 Id.64 WALTER MURPHY & C. HERMAN PRITCHETT, COURTS, JUDGES, & POLITICS: AN

INTRODUCTION TO THEJUDICIAL 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, at211.67 See GEYH,supra note 53, at209-10(describing an appointment made by President George

Washington to a federal judicial post in Savannah, Georgia that was postponed by the Senatedue to the disapproval of a senator from Georgia).

68 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 Associations StandingCommittee on the Federal Judiciary (the ABA Committee).70 Byintroducing the American Bar Association (ABA) into the process,President Eisenhower and his attorney general attempted to reduceinstances of judicial appointments, especially to the lower courts,recommended by federal or local lawmakers for purely political reasonse.g., when the nominee was a particularly good fundraiserand withoutconsidering the nominees legal abilities.71 Essentially, the EisenhowerAdministration and most of the subsequent presidential administrationshave looked to the ABA Committee to fulfill a semi-official role inadvising the executive as to whether the larger legal community wouldembrace a potential nominee.72

The peer-review evaluations conducted by the ABA Committeeconsider three factors: (1) professional competence; (2) integrity; and (3)judicial temperament of the potential nominee.73 Valuation of these factorsresults in rating a candidate well qualified, qualified, or notqualified.74 As described by both the ABA and the current SenateJudiciary Committee, the ABA Committees evaluations are meant to be aneutral analysis of a nominees general competence and integritynot toprovide any evaluation of the nominees judicial philosophy or politicalideology.75 Ideally, the evaluations highlight potential problems with thenomination and address these problems early in the processbefore theSenate Judiciary Committee considers the nomineeto prevent needlessexpenditure of political capital on a nominee who likely will not

69 See MILLER CENTER REPORT, supra note 59, at 4.70 See GEYH,supra note 53, at211;AM.BAR ASSN,AMERICAN BAR ASSOCIATION STANDING

COMMITTEE ON THE FEDERALJUDICIARY: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.71 MILLER CENTER REPORT, supra note 59, at 10.72 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).73 AMERICAN BAR ASSOCIATION STANDING COMMITTEE, supra note 70, at 1, 10.

74 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 Senates 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 judiciarys politics, particularly withrespect to the nominations process, has led to a widespread perceptionamong Americans that the judiciary is not impartial, but instead servesspecial interests.77 This politicization has also resulted in understaffed courtsystems, crippling the federal judiciarys ability to hear cases at the groundlevel.78 If negative public perception and understaffing issues persist, thepublic may lose its long-held respect and trust in the governments judicialbranch.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 haveplummeted to just sixty-three percentthe lowest percentage in well over

thirty years.80

Without the publics trust, the judiciary risks losing much ofits legitimacy and efficacy.81

A. Increased Politicization of the Federal Judiciary Nominations ProcessAlthough there are several ways to analyze and explain the recent,

increased focus on the politics of the judiciary, this Note will focus on theways in which politics have impacted the nominations process.82 CharlesGeyh notes that the Senates fixation on the decision-making ideology ofSupreme Court nominees began over a century ago, when it wasincreasingly obvious that other methods of control and accountabilitywould not work.83 Since then, the nominations process has developed into

76 Little, supra note 72, at 51 (noting that the ABA Committees input can assure that

controversy is avoided and consensus is achieved).77 Seeinfra Part II.A-B.78 See infra Part II.A-B.79 Cf.STEPHEN BREYER,MAKING OUR DEMOCRACY WORK:AJUDGES VIEW 1 (2010) (noting

that democratic legitimacy depends upon public support and trust in Supreme Court

decisions, even when they are unpopular).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-Court-

Approval-Rating-Dips.aspx.81 See BREYER, supra note 79, at 1 (The Constitutions efforts to ensure a workable

constitutional democracy mean little if the public freely ignores interpretations of the

Constitution that it dislikes.).82 See infra Part II.A.83 GEYH,supra note 53, at208; see supra notes 45-53 and accompanying text.


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Federalist Society for evaluations and recommendations for potentialjudicial nominees.94 The Federalist Societys role during the BushAdministration exceeded the ABA Committees limited role of evaluating

potential nominees; the Federalist Society also actively participated in thenominee selection process.95

The Federalist Society is a conservative group that believes in limitedgovernmentmost notably, individual liberty, traditional values, and therule of law.96 It formed in 1982 to challenge what was perceived to be theestablished, liberal, legal elite with a conservative counterelite.97 TheFederalist Society sought to do what many left-leaning groups (such as theAmerican Civil Liberties Union) had already accomplished: to infiltrate lawschools, government agencies, public interest law firms, and courts todevelop a more conservative legal orthodoxy after the liberal era of theWarren Court.98

As a result, recent Republican presidents (including George W. Bush)

have staffed their administrations with Federalist Society lawyers adamantabout nominating only credentialed members of the Federalist Society tothe federal bench.99 In 2009, with the end of the Bush Administration andthe advent of the Democratic Obama Administration, the ABA Committeereclaimed its role in the pre-nomination vetting process, relegating theFederalist Society to the sidelines.100

These battles over conservative- or liberal-leaning nominees havegarnered the media spotlight, ensuring the American peoples constantawareness of this-or-that nominees 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-choices-

soon.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 SOCY, http://www.fed-soc.org/aboutus (last

visited May 20, 2013).97 Hollis-Brusky, supra note 95, at 522.98 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 OFJUDICIAL 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 Groups Neutrality Is Challenged, N.Y. TIMES (Mar. 30, 2009),

http://www.nytimes.com/2009/03/31/us/31bar.html.


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obscure the nominee.101 Many special-interest groups, such as politicalaction committees, see the judicial appointments process as a crucial partof their platform and enlist a plethora of media tools, such as television

advertising, to advocate for or against nominees based on their perceivedpolitical leanings.102 These media battles likely influence whether theAmerican people support or repudiate controversial decisions by thefederal judiciary.103

B. Effects of Politicization1. The Perception of a Judicial Elite

When making their reforms, the English recognized that one of thethreats to the perception of an impartial judiciary (and therefore a threat toits public acceptance) was that the judiciary seemed to resemble a networkof elites unrepresentative of the English people.104 The United States faces asimilar threat: the perception of a good old boys network.105 Thisperception manifests in at least two distinct ways. 106 First, the federaljudiciary is still largely composed of white men.107 This compositionpersists despite the fact that, since the 1950s, executives have appointed(and Congress has confirmed) more women and racial and ethnicminorities to the federal bench.108 However, this trend has not acceleratedquickly enough to keep pace with the changing face of the Americanpeople.109 For example, women only account for approximately eighteen

101 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-judge-

judiciary.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.103 See id.104 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 FEDERALJUDICIARY 1 (2009), available at

http://www.brookings.edu/~/media/research/files/papers/2009/8/federal%20judiciary%20whe

eler/08_federal_judiciary_wheeler.pdf.108 Id.109 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


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minority partys ability to check the power of the executive branch and themajority party,118 minority parties have employed the filibuster more thanever in the last few years due to increased partisanship.119

The result is a significant number of vacancies on the federal bench.120These vacancies pose a seriou problem: federal courts around the countryare overwhelmed due to staffing shortages, resulting in thousand-casepileups in some jurisdictions.121 Yet nominations continue to crawl throughthe Senates final-vote phase, and the Senate often puts nominations onhold for significant stretches of time.122 This trend has worsened over thepast thirty years, evidenced by the Senates confirmation of only fifty-eightpercent of President Obamas nominees at the end of his First Congress ascompared to ninety-six percent for President George H.W. Bush. 123

ANALYSIS

III. Addressing the Root of the Politicization Problem: An IndependentJudicial Nominations Committee for the United States

The United States can follow Englands exemplary solution to the crisisof an overly politicized judiciary.124 However, the United States cannot

118 See id. at 337.119 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).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-collide-

gridlock-hits-federal-courts/zQVtUmOSol9sHre7OuX3MP/story.html; Bruce Moyer, April

2012: Sizing Up Obamas 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 111TH CONGRESS, supra note 119, at 20.124 Maute, supra note 9, at 423.


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adopt the English model without some necessary changes, as there are afew major differences between the American and English governments.125Nevertheless, a U.S. Judicial Nominations Commission inspired by

Englands JAC could effectively recommend and evaluate judges for thefederal bench during the pre-nomination process.126

A. Why the English Judicial Appointments Commission Is Unique toEngland

The JAC is comprised of two lawyers, seven judicial officers, and sixlay people.127 The judicial members give the judiciary a measurable voice inscreening and selecting future members.128 The JAC also insulates thejudiciary from the overt influence of the Lord Chancellor, a member of thePrime Ministers cabinet, by eliminating his selection privileges andleaving him with only veto authority.129 Selecting judges without majorinput from the other government branches works in England because of

the traditional, longstanding balance of powers in the English governmentand the crucial role played by parliamentary sovereigntyi.e., Parliamentsays what the law is and courts may not overturn legislation. 130 Therefore,establishing an independent JAC to select judges does not equate to anindependent, unchecked judiciary; rather, the governments legislativebranch constrains the judiciary through parliamentary sovereignty.131

In the United States, a balance of powers among the three branches ofgovernment is integral to the workings of the political system. 132 In somerespects, the balance of power among the three, co-equal branches of theUnited States government differs significantly from the balance of power inthe United Kingdom.133 For example, the principle of parliamentarysovereignty does not exist in the U.S.; instead, courts are ruled by the

125 See infra Part III.A.126 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.128 See Clark, supra note 8, at 59-61; supra Part I.A.2.129 See supra notes 36-38 and accompanying text.130 Hyre, supra note 17, at 432.131 Id.132 See 16A AM.JUR. 2DConstitutional 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.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 Breyerdescribed judicial review as a reference generally to the fact that theCourt has the power to strike down a statute as incompatible with the

Constitution in a particular case, a power that gives the judicial branch theability to check the power of the executive and legislative branches. 135Because of judicial review, the legislative and executive branches in theUnited States cannot check the judiciarys power with the legislativeprocess; indeed, the only real way for the legislative and executivebranches to check the federal judiciarys power is through the nominationsand appointments processes.136 Therefore, to remove the appointmentspower almost entirely from the executive and legislative branches, leavingit in the hands of a group heavily influenced by the judiciary itself (as theEnglish have done), would compromise the current balance of power.137Rather than translating the English model exactly, the United States shouldadjust 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 NominationsCommission

Instead of seven judicial members, the United States should appointfour executive-branch representatives and three legislative-branchrepresentatives, ensuring that the political branches still heavily influencethe nominations process.139 The remaining memberstwo lawyers and sixlay people, with one lay person serving as the Commissioner (just like theEnglish model)will temper the likely partisan behavior of the political

members.140 Reflecting the relatively recent trend to involve the ABACommittee or the Federalist Society in advising presidential

134 Id. at 469-70.135 BREYER,supra note 79, at10.136 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).138 See infra Part III.B.139 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 theSenate. See U.S.CONST. art. II, 2, cl. 2.

140 See Commissioners, supra note 32.


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administrations in nominee selection, one lawyer from each organizationshould be represented on the proposed Judicial NominationsCommission.141 Finally, as with the English model, the lay members should

be various upstanding and accomplished individuals from the businesscommunitys for- and non-profit sectors; legal academia; the public policyrealm; and state and local government.142

2. Selection and Term Limits for the Proposed JudicialNominations Commission

A number of critical points relate to how this type of Commissionwould work.143 The first is who would be responsible for picking thepickersi.e., the commissioners.144 A four-person panel appointed byboth the Lord Chancellor (representing the executive branch) and LordChief Justice (representing the judicial branch) selects the members of theJAC in England.145 This will not work in the United States where, to

preserve the balance of powers, the legislature and executive collaboratewithout judicial involvement in matters of judicial appointment.146 Instead,the President and a legislative-branch representative, preferably the SenateJudiciary Committee Chair, should select the four-person panel.147 Thefour-person panels intended role is to mitigate direct political influence onthe selection of commissioners and, by extension, on the recommendationsand 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 notinclude 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).143 See infra Parts III.B.2-4.144 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 executives 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.148 See History, JUD. APPOINTMENTS COMMISSION, http://jac.judiciary.gov.uk/about-

jac/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, thePresident and Senate Judiciary Committee Chair should convene panels inthe United States on an as-needed basisonly when a vacancy on the

Commission arisesjust as in England.149

For the same reasons, eachcommissioners term should be limited to no more than five consecutiveyears, or ten years if the commissioner serves non-consecutive terms. 150

3. Placement of the Proposed Judicial NominationsCommission

The next issue is where the proposed Judicial NominationsCommission will fit into the existing nominations process, since it is clearthat the Commission cannot independently and exclusively select andrecommend nominees, as in England.151 Academics that have looked toEnglands recent reforms for guidance believe that an independentcommission modeled after the JAC would function best as an advisory

committee to the Senate Judiciary Committee, poised to provide feedbackregarding a Presidents nominee.152 This is not a workable solution because,by the time the President recommends a nominee to the Senate JudiciaryCommittee, he or she has invested significant political capital in thatnominee.153 The nominees name becomes public,154 and the media willlikely report any disagreements over the nominees qualifications, leadingto discord and accusations of partisanship.155 For example, George W. Bushnominated Harriet Mierswho 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).149 See Constitutional Reform Act, 2005, c. 4, 61, sch. 12, para. 7 (U.K.).150 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).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 disagreementsbetween Senate Republicans on Democrats on certain federal judicial nominees);

supra note 99 and accompanying text.


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Committee, nor approved by the Federalist Societyto the SupremeCourt.156 She abruptly withdrew her nomination after bitter attacks fromboth sides of the aisle regarding her qualifications.157

For any advisory committee to significantly impact the nominationsprocess, the committee will likely need to work directly with thepresidential administration to determine nominees selection.158 Thisconclusion is based, in part, on the Bush Administrations excise of theABA Committee from the pre-nomination vetting process and the ABACommittees subsequent evaluation of the nominees submitted to theSenate Judiciary Committeeeven after the administration had made itsnomination decision.159 As some remarked in the wake of the ABACommittees banishment from the pre-nomination vetting process, peoplecontacted for information regarding nominees are less likely to honestlyassess the nominee once the nomination becomes public.160 Additionally,the potential effectiveness of the ABA Committees evaluations is seriously

diminished when relegated to a point in the process where the nominationis public and there exists an inevitability of the appointment.161Therefore, the proposed Judicial Nominations Commission must be part ofthe pre-nomination process to actually affect changes to the currentsystem.162

4. Remit of the Proposed Judicial Nominations Commission

In defining the proper remit of the proposed Judicial NominationsCommission, it is useful to look to Englands JAC, the ABA Committee,and the Federalist Society under the Bush Administration for guidance.163

156 Elisabeth Bumiller & Carl Hulse, Bushs 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; Hollis-

Brusky, 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 Committees new role

during the Bush Administrationevaluator of nominees after they have been named by the

Presidentmay have robbed the ABA of any major significance in the process).159 Id.160 Id. ([When] people dont get asked about nominations until theyre public . . . [it] has

to have a serious chilling effect on people being totally honest with the ABA about concerns

they may have.).

161 Little, supra note 72, at 68 & n.159.162 See supra Part III.B.3.163 See Whitehead & Beckett, supra note 6, at 218-19; infra text accompanying notes 164-69.


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simply insist[ed] on greater diversity in appointments in order to makethe [courts] more representative, so that [their] occasional legislating willtend 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 istempered and does not result in decisions at the extremes of the politicalspectrum.180 For example, when a three-judge panel consists of judges whoall subscribe to the same or similar ideology, the panel tends to produce amore polarized opinion.181 On the other hand, panels of judges withdiffering ideologies and experiences tend to moderate the resultingmajority opinionthe majority will temper opinions reflecting ideologicalextremes to facilitate a unanimous opinion, which on the court-of-appealslevel is often desired.182 Research suggests that only by forcing judges toconfront and defend ideological critiques can a generally acceptable middlegroundthough not truly independent, as some idealists would like

be reached.183

Thus, the more diverse the federal bench, the more likely it isthat the public will embrace the role of the judiciary and therefore validateits decisions by implementation at the local level.184

Diversitys noted impact on public perception is why the proposedJudicial Nominations Commissions focus on diversity should rebutnegative stereotypes of judges as political actors or representatives of anelite, good old boys network.185 This would be true for nominees in themedia spotlight as well as judges serving on the bench, because nomineeswill be more difficult to attack based on an identifiable political agendawhen a neutral, independent Judicial Nominations Commission conductsthe selection, or otherwise provides a positive evaluation of the nomineesqualifications.186

B. Nominees Vetted by an Independent Judicial NominationsCommission Will Likely Lead to Decreased Use of the Filibuster and

179 RICHARD A.POSNER,HOWJUDGES THINK 87 (2008).180 See id. at 33-34.181 See id.; SUNSTEIN ET AL.,supra note 178, at 135.182 See POSNER,supra note 179, at33-34; SUNSTEIN ET AL.,supra note 178, at 135.183 See SUNSTEIN ET AL.,supra note 178, at 135.184 See VALERIEJ. HOEKSTRA,PUBLIC REACTION TO SUPREME COURT DECISIONS 153 (2003);

Whitehead & Beckett, supra note 6, at 211.185 See supra Part II.B.1.186 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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than simply politically expedient.192 The selection of highly qualifiednominees is critical: even nominees who harbor ideological tendencies thatdiffer 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 tothe federal bench is inherently political. The politicking is necessary tosome extent, because it facilitates constitutional checks and balances amongthe three governing branches. However, the process has recently reached atipping point where politicization gives rise to serious legitimacy issuesregarding the judicial branch. Todays overly politicized judicialnominations process jeopardizes the American peoples confidence in thejudiciary to neutrally evaluate the law and provide efficient, effectiveaccess to the legal system. Looking to England for guidance and inspirationis useful. A modified version of their independent Judicial AppointmentsCommission would nicely complement the existing nominations process inthe United States. Employing the English model with some modificationswould promote greater diversity on the bench and minimize thedestructive use of the filibuster, thus fostering greater confidence in thejudiciary as a whole.

192 See supra text accompanying note 170.193 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 SolicitorGeneral's office.).

Documents

E. Anderson: The Problem of Politics and Appointments to the Federal Bench