Law and Politics

Start Free Trial

What are important considerations for filling federal judge positions?

Important considerations for filling federal judge positions are nominee's behavior, qualifications, judicial philosophy, and potential conflicts of interest. The Constitution itself is silent on the issue of qualifications to fill positions on the federal bench, specifying only that a nominee be of "good behavior."

Expert Answers

An illustration of the letter 'A' in a speech bubbles

For the individuals nominated by the president to sit on the upper levels of the federal bench, there are no qualifications specified other than that the individuals in question should of good standing in their communities. Article 3, section 1 of the Constitution of the United States establishes the Judicial Branch of government, but it states only the following with regard to qualifications or character:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

In other words, individuals nominated by the president to fill openings on the Supreme Court, federal courts of appeal, and district courts need only be of good character. Nothing else is specified. At the lower levels of the federal judiciary, levels established by Congress, such as federal magistrates, there are specified qualifications, such as a minimum number of years as a member in good standing of the individual's state bar. At those higher levels, however, important considerations for filling seats in federal courts are left to the United States Senate, which is vested by the Constitution with responsibility for vetting and confirming candidates nominated by the president.

Because the Constitution does not specify qualifications for federal judgeships, it is, consequently, imperative that the Senate, initially under the guidance of the Committee on the Judiciary, thoroughly vet each nominee. The Committee takes that responsibility very seriously, but one could argue that politics has intruded into the process to such an extent that qualifications possessed by individual nominees are sublimated to broader ideological or political considerations.

Ideally, nominees to fill openings in federal courts can point to long records of admirable work as practicing attorneys and/or as county or state judges new to the federal process. It is hard to argue against practical experience as an important consideration for higher levels of responsibility.

That experience, however, leaves a trail for subsequent examination by those seeking to determine an individual's suitability for the federal courts. How successful has an attorney been at representing the interests of their clients, be that client the government itself (in the case of prosecutors and solicitors) or individuals or organizations involved in criminal or civil litigation? Has the nominee for a federal judgeship ever been sued by a client for malpractice? Has the nominee been reprimanded by his or her state bar for failing to abide the ethical code to which attorneys are bound? These are the most basic considerations for prospective judges.

Beyond the basic questions of competency and ethics is the far more difficult realm of judicial philosophy. What is a nominee's view of various sections of the Constitution? Does the nominee have strong feelings about the Second Amendment to the Constitution, which bestows upon the citizenry the right to own firearms? Supporters of stronger gun-control measures may look askew at nominees with a history of actions or opinions sympathetic to gun-rights activists.

Similarly, what is a nominee's view on the proper role of the federal government in regulating healthcare, especially the infamous issue of reproductive rights? Members of the Senate occupying one side of the ideological aisle will view nominees to the federal courts differently than will those who occupy the other side of the debate. Judicial philosophy is considered the most important benchmark by many senators reviewing nominations to the federal bench. A nominee's view on the proper role of the federal government in regulating society is a key consideration.

One additional consideration when vetting nominees to the federal bench is potential conflicts of interest. Has a lawyer nominated to a federal district court represented clients, such as special interest groups or corporations, that might have issues pending before the court? A lawyer who represents Planned Parenthood, for instance, will be carefully scrutinized by anti-abortion senators and activists when that lawyer is nominated to be a judge. A lawyer is an inherently partisan part of a case; a judge must be neutral in deciding the outcome of that case. Can a previously partisan lawyer become a neutral judge?

These are some of the issues that are routinely considered when individuals are nominated to sit on federal benches. The environment in which nominees are vetted and voted upon has become highly partisan and potentially threatening to the integrity of the process, but that is where it stands.

Approved by eNotes Editorial Team
An illustration of the letter 'A' in a speech bubbles

Positions in the federal magistracy are important legal posts that carry significant responsibilities and authority. Given that United States judges are appointed to serve for life, the criteria for their selection must set at a high bar.

First, a federal judge must be a qualified attorney. While this is not a constitutional requirement, judges without such qualification are unlikely to win Senate confirmation. For instance, it's been more than a half-century since a justice has been appointed to the United States Supreme Court who did not have a law degree (the last was Robert H. Jackson, appointed in 1941).

Second, a judge should be of an age that they will qualify for senior status under the "Rule of 80." The Rule of 80 establishes that a judge may assume senior status at age 65 provided they have at least 15 years federal judicial experience. Senior status allows older judges to go into voluntary semi-retirement which is generally considered beneficial in that it discourages elderly and infirm justices from continued service.

A third consideration is the candidate's prior courtroom experience. For instance, more than 46 percent of recently appointed U.S. District Court judges were serving as state judges or federal magistrates prior to their appointment. The bulk of the rest were attorneys with active litigation careers, many of whom had previous judicial experience.

Other factors in filling federal judicial posts include a candidate's honesty, integrity, and overall legal acumen.

Approved by eNotes Editorial Team