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Stacking the federal court system

By Merton C. Bernstein / October 14, 1986



THE debate over William Rehnquist's nomination as chief justice is over. The less controversial Antonin Scalia was also confirmed. Unfortunately a fundamental question was overlooked -- the propriety of the attorney general's preeminent role in the selection of all federal judges. The problem is not new with this administration. Indeed, for as long as we can remember, the attorney general has presided over the initial selection of federal court nominees. In some administrations, as in the current one, he has also influenced, if not dominated, that process. But long practice does not cure the fundamental impropriety of that role.

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Fairness is the indispensable element of courts. Fair courts require neutral judges. Indeed, in federal and state courts any litigant has the right to challenge a judge assigned to a particular case on the grounds of bias or prejudice. Any personal or business relationship with a party obviously constitutes such grounds. For example, it is clearly intolerable for a judge to decide a case involving a former client. And it goes without saying that one party may not select the judge for his own case.

Yet, the principal litigant in the federal courts plays a crucial role in the selection of federal judges. The attorney general of the United States presides over the process for selecting the names to be submitted to the president for nomination as federal judges, while that very same official's representatives are the lawyers in every criminal case in the federal courts and the most frequent litigants in civil cases.

Once appointed, those judges enjoy life tenure, whose very purpose is to ensure their independence. That independence promotes evenhanded justice, which must include complete freedom to rule against the attorney general's clients -- the US as prosecutor, as claimant, or as defendant in the thousands of suits filed each year. But if the attorney general plays a role in the selection of nominees to the federal courts of appeals and even the Supreme Court, independence is compromised.

The attorney general, whose representatives daily appear before the federal courts, controls the machinery by which nominees to the higher federal courts are selected. If a private law firm had that power, we would readily see its impropriety. It is inappropriate that the head of the largest law firm in the country screens federal judges and decides their promotions.

Every federal district judge, every United States appeals judge knows that the boss of the federal attorneys who appear before them daily may one day decide whether they merit promotion to a higher echelon of the courts.

How many know in Congress, press, and citizenry, that some of the attorney general's minions keep book on district judges? One judge told me that within his first year the US attorney came to his chambers to present the complaints of his assistants about several of the judge's rulings against them. The judge invited him to leave. But perhaps other district judges had not.

Life tenure protects sitting judges only in holding on to the jobs they have. It does not protect them -- and so does not protect us -- against the temptation to please the attorney general, who controls access to higher judicial office. Of course, on major matters of ideology, the president's advisers will scrutinize a judge's rulings. That scrutiny should not be made by a major litigant, the attorney general.

Properly structuring the process for selecting judges is not easy, but there are models. Several US senators have established panels to screen and recommend candidates to the federal bench. President Carter used a distinguished panel headed by former Florida Gov. Reubin Askew to interview, assess, and report on the qualifications of non-career ambassadorial nominees in order to reduce political influence in the selection process. These suggest a model that presidents should use in selecting the men and women upon whose competence and fairness the system of constitutional checks and balances so heavily depends. But one thing does seem obvious. The principal litigant in the federal courts -- the attorney general -- should have no role in selecting federal judges.

Merton C. Bernstein is Walter D. Coles professor of law, Washington University School of Law, St. Louis.