A Survivor's Perspective: Federal Judicial Selection from George Bush to Donald Trump
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\\jciprod01\productn\N\NDL\95-5\NDL503.txt unknown Seq: 1 10-JUN-20 15:01 A SURVIVOR’S PERSPECTIVE: FEDERAL JUDICIAL SELECTION FROM GEORGE BUSH TO DONALD TRUMP Leslie H. Southwick* INTRODUCTION Where are we, and how did we get here? Those are not bad questions for seeking a way out of any troubled situa- tion, or for that matter, remaining in a good one. Over recent decades, fed- eral judicial selection controversies are worsening in their frequency and intensity. They distort all three branches of government. My particular con- cern is with federal judicial selection for judgeships below the Olympian heights of those on the United States Supreme Court, namely, the judges on the twelve regional circuit courts of appeals and the ninety-four district courts. The depth of partisan acrimony over judicial confirmations has placed us in the infernal regions, and we seem to be continuing our descent. Ana- lyzing how we got there is invariably affected by the biases, or more gently, by the perspectives of the observer. I will try to avoid suggesting blame, but it is my hope to suggest the forces—political, historical, and even jurispruden- tial—that have propelled the process in the direction we have gone. There are several possible starting points for a survey. The beginning, i.e., 1789, is well beyond my competence to explore in depth. Nonetheless, I will give a quick historical survey, my point being that current controversies about judges have not displaced a magical time when judicial selection was © 2020 Leslie H. Southwick. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * The author has been a judge on the United States Court of Appeals for the Fifth Circuit since October 2007, with chambers in Jackson, Mississippi. I thank one of my stellar law clerks, Daniel Fiedler, for research assistance. Judge Kyle Duncan generously agreed to assist on a few points. Ed Whelan of the Ethics and Public Policy Center gave generously of his time in answering questions in my telephone call. Gratitude to Rita Lari with the Senate Judiciary Committee, who was able to find elusive 1992 press releases in the Committee files, and to Gregg Nunziata who pointed me in her direction. Quite diligent in obtaining sources for me were Fifth Circuit librarians Sue Creech, Brent Hightower, Melinda Williams, and Judy Reedy. My sincere thanks to them too. 1847 \\jciprod01\productn\N\NDL\95-5\NDL503.txt unknown Seq: 2 10-JUN-20 15:01 1848 notre dame law review [vol. 95:5 above the political fray, where legal luminaries were always nominated and then were met with universal approval. Very early, one party’s seemingly overweening effort to pack certain courts led to a landmark Supreme Court decision. A significant consideration for me when deciding the time period to cover, in addition of course to making the task manageable, was that if I am going to write on a topic much written upon already, perhaps it would be beneficial to write from the perspective of someone who for several decades has been tangentially involved with nominations of lower-court federal judges. The thirty-year period I have chosen began with my work at the Department of Justice during the first President Bush’s one term. While there in 1989–1993, I was a failed aspirant for one of those judgeships. Dur- ing the year-long migration from applicant to also-ran, I witnessed the pro- cess both as an insider of the administration but as an outsider to most of the events that culminated in the selection. In the George W. Bush administra- tion, 2001–2009, I was selected for the circuit judgeship I now hold, but suc- cess took almost all of Bush’s eight years. Since then, I have observed closely for new colleagues both in the Fifth Circuit and elsewhere. Such a perspec- tive, though, is admittedly a distorted one. Another distortion that follows from the first is that my personal knowledge causes me to write more about the Fifth Circuit Court of Appeals than about other courts—an emphasis, but not an ignoring of the rest of the country. What will be discussed are significant nominations of each of the pre- sidencies during the thirty-year period, almost all being circuit court nomina- tions. The reasons I discuss a particular nominee will vary. Some were chosen because they led to new rules for processing nominations. Others became national news stories worth recalling. Still others were the paths that particularly well-known judges took to reach their positions. Because my experience was as a several-times-frustrated aspirant, and then finally a controversial nominee, I also will discuss when possible the impact of the harshness, or to use an apt if old-fashioned word, the mean- ness, that is injected in some nominees’ confirmation struggles. I will say, after my own journey ended in 2007, what I thought was harsh seems mild compared to some more recent battles. I had protested too much. What I saw as not just unfair criticism but some critics’ indifference to the validity of the charges caused me to rely more and more on my Christian faith for keep- ing the worries of the world in their proper place. I will focus on that aspect when I can in part because this is a law review at a school that at least was founded on faith. In addition, the pointed rejection by some that a judge can be faithful both to his or her religion and to the judicial oath is a danger- ous trend but a natural one in the present world. That is too corrosive a view to ignore. A confession before starting. My experience makes me almost invariably sympathize with a judicial nominee regardless of the controversy or the Presi- dent who made the selection. I say that even though in recent decades, each political party and its supportive groups have increasingly insisted on the \\jciprod01\productn\N\NDL\95-5\NDL503.txt unknown Seq: 3 10-JUN-20 15:01 2020] federal judicial selection from bush to trump 1849 nomination of judges who will apply their favored analytical principles, rang- ing from a tight focus on text and original meaning to a belief that the inter- pretive method must be sufficiently supple to allow reaching the best meaning under current societal standards. In my twelve years on the Fifth Circuit, I have had gifted colleagues join this court. The political process is unnecessarily harsh, but within that reality, the survivors need to become friends by sharing in the common task. Seeing another judge not as evil but as simply being in error are fundamental to serving on an appellate court. I. IN THE BEGINNING I will give a relatively brief background to indicate that though there have been increasing and accelerating controversies about selection of fed- eral judges, the problems have been with us since the first presidency. A 1993 book written by Stanford law librarian J. Myron Jacobstein and Univer- sity of Texas law librarian Roy M. Mersky, called The Rejected, identified twenty-six nominees to the Supreme Court whose confirmations were, well, rejected by actual votes or by being ignored.1 The book begins with a nomi- nation by the Father of the Country, George Washington, whose stature did not save John Rutledge, his nominee to be Chief Justice.2 At least some of the votes against confirmation arose from Rutledge’s injecting himself into politics by opposing the Jay Treaty with England in a well-publicized speech, which Rutledge gave almost at the same time that the President gave him a recess appointment as Chief Justice in July 1795. When the Senate came back into session in December, confirmation was rejected by a 10–14 vote.3 In describing the early decades of selection politics, it is hard to overlook that Marbury v. Madison arose from a new President and his political party’s outrage over a previous President and his party’s “midnight” appointment of numerous new judges, even if the judges involved in that case were only jus- tices of the peace for the District of Columbia and Alexandria, Virginia, serv- ing five-year terms.4 A Jeffersonian newspaper called the creation of new courts by a Federalist Congress and the immediate filling of the positions by President John Adams, who was in his last weeks in office after being defeated for reelection, “one of the most expensive and extravagant, the most insidious and unnecessary schemes that has been conceived by the Fed- eral party.”5 It was not all that, but the bill was a bit bold. The bolder enact- ment passed at the same time was the Judiciary Act of 1801, which created six circuit courts with sixteen life-tenured judges who relieved the Supreme Court Justices from their arduous circuit-riding duties that required each Jus- tice to travel by horse, buggy, or boat to one of the six circuits to hear 1 J. MYRON JACOBSTEIN & ROY M. MERSKY, THE REJECTED: SKETCHES OF THE 26 MEN NOMINATED FOR THE SUPREME COURT BUT NOT CONFIRMED BY THE SENATE (1993). 2 Id. at 5–10. 3 Id. at 8–9. 4 See CLIFF SLOAN & DAVID MCKEAN, THE GREAT DECISION: JEFFERSON, ADAMS, MAR- SHALL, AND THE BATTLE FOR THE SUPREME COURT 53–54 (2009). 5 Id. at 56 (quoting the Aurora).