Vanderbilt Law Review Volume 43 Issue 1 Issue 1 - January 1990 Article 1 1-1990 Participation by the Public in the Federal Judicial Selection Process William G. Ross Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Judges Commons, and the Supreme Court of the United States Commons Recommended Citation William G. Ross, Participation by the Public in the Federal Judicial Selection Process, 43 Vanderbilt Law Review 1 (1990) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol43/iss1/1 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. VANDERBILT LAW REVIEW VOLUME 43 JANUARY 1990 NUMBER 1 Participation by the Public in the Federal Judicial Selection Process William G. Ross* I. INTRODUCTION ...................................... 2 II. HISTORICAL BACKGROUND ................................ 3 A. Early H istory .................................. 3 B. The Early Twentieth Century .................. 6 C. Hughes and Parker ............................ 10 D. Black, Frankfurter,and Clark .................. 13 E. Haynsworth and Carswell ...................... 15 F. Rehnquist Nomination: 1971 .................... 21 G. Recent Nominations ........................... 22 III. DEFINING THE ROLE OF THE PUBLIC ...................... 25 IV. THE ROLE OF THE AMERICAN BAR ASSOCIATION ......... 35 A. Procedures and Practices ...................... 35 B. The ABA Case ................................ 42 1. Antecedents ............................... 42 2. The District Court's Decision ............... 45 3. The Supreme Court's Decision .............. 48 4. The Concurring Opinion ................... 51 5. Criticism of the Majority and Concurring O pinions .................................. 54 V. CONGRESSIONAL REVIEw OF THE ABA STANDING COMMIT- TEE ..................................................... 61 VI. INTERNAL REVENUE SERVICE ACTIONS ..................... 69 A. Confirmation Votes Defined As "Legislation" .... 69 * Assistant Professor of Law, Cumberland School of Law, Samford University; member of the New York Bar. A.B., Stanford University, 1976; J.D., Harvard Law School, 1979. VANDERBILT LAW REVIEW [Vol. 43:1 B. Nominations As a "Campaign" or "Election" .... 72 C. PoliticalExpenditures .......................... 73 D. Criticism of IRS Actions ....................... 75 E. The Association of the Bar Case ................ 78 VII. CONCLUSION ............................................. 82 I. INTRODUCTION The firestorm ignited by the 1987 nomination of Robert H. Bork provided a vivid reminder that public opinion and organized interest groups can have a potent and even decisive impact upon the selection of United States Supreme Court Justices and other federal judges. Al- though the Constitution vests the prerogative of nomination in the President and the power of confirmation in the Senate, the public also is a partner in the selection process in ways that often extend far be- yond the citizenry's election of its President and representatives in the Senate. Public opinion has influenced the judicial selection process throughout the history of the Republic, although public participation in that process has been sporadic. The sharp contrast between the public controversy over the recent Rehnquist and Bork nominations and the widespread public silence concerning the Scalia and Kennedy nomina- tions suggests that organized interest groups are not likely to have a significant role in every nomination. A clear trend, however, exists to- ward an increased public awareness of the importance of federal judi- cial nominations and a growing public participation in the selection process. Several recent and pending developments are likely to influence the scope of future public participation in the federal judicial selection pro- cess. For example, the procedures and role of the American Bar Associ- ation (ABA) in both the nomination and confirmation of federal judges may change as a result of criticisms by both liberals and conservatives. Although in June 1989 the Supreme Court rejected an attempt to re- quire the ABA's Committee on Judicial Selection to open some of its meetings and records to the public,' the Committee's practices have at- tracted the scrutiny of both the Bush Administration and the Senate. The Department of Justice has insisted that the ABA refrain from us- ing ideology in its ranking of judicial candidates, and the Senate Com- mittee on the Judiciary is reassessing its own reliance upon the ABA. Recent tax developments also are likely to affect the scope and na- 1. Public Citizen v. United States Dep't of Justice, 109 S. Ct. 2558 (1989). This case was consolidated with Washington Legal Foundation v. United States Department of Justice. 1990] JUDICIAL SELECTION ture of public participation in the judicial selection process. The Inter- nal Revenue Service (IRS) has promulgated a new rule, proposed regulation, and announcement that will affect the tax status of certain nonprofit organizations that lobby for and against judicial nomina- tions.2 Congress may enact legislation to override at least part of these actions. Meanwhile, the Second Circuit has held that the Association of the Bar of the City of New York is ineligible for full tax exempt status because it rates candidates for elective judicial office.' The controversy over the ABA's participation in the judicial selec- tion process and the recent, potentially restrictive tax developments demonstrate a growing awareness of the significance of public participa- tion in the judicial selection process. Accordingly, it is useful to analyze the appropriate scope and functions of such participation. In analyzing the role of the public in the federal judicial selection process, Part II of this Article first will explore the historical develop- ment of public participation in the nomination and confirmation processes. Part III will demonstrate that the increasing importance of public participation is consistent with the growth of participatory de- mocracy, and it will explain why the excesses of the campaigns for and against Bork should not discredit the need for a broad public role in the judicial selection process. Part IV of the Article will argue that the Su- preme Court's decision in the Association of the Bar case (ABA case) was decided wrongly because the application of the Federal Advisory Committee Act was consistent with the language and intention of that statute and would not have violated the doctrine of separation of pow- ers. In Part V the Article also will contend that the ABA should con- tinue to have an important role in the judicial selection process but that the ABA needs to reform some of its rating procedures for judicial can- didates. Finally, Part VI of the Article will assert that the internal reve- nue laws should not be designed to discourage public participation in the federal judicial selection process. Accordingly, the Article will argue that the recent IRS actions misinterpret the Internal Revenue Code and represent bad public policy and that the Code should be amended to eliminate the restrictions created by the ABA case. II. HISTORICAL BACKGROUND A. Early History From the Republic's earliest history, public opinion has influenced the Supreme Court appointment process. President George Washing- 2. See infra notes 305-73 and accompanying text. 3. Association of the Bar v. Commissioner, 858 F.2d 876 (2d Cir. 1988), cert. denied, 109 S. Ct. 1768 (1989). VANDERBILT LAW REVIEW [Vol. 43:1 ton's unsuccessful nomination of John Rutledge for Chief Justice in 1795 created an uproar that extended far beyond the chambers of the United States Senate.4 The Federalist press in the North denounced the nomination with particular vehemence.5 The press also vigorously encouraged the defeat of James Madison's nomination of Alexander Wolcott in 1811.8 On a number of other occasions during the nineteenth century, the Senate's highly partisan opposition to Supreme Court nominees was accompanied by free-wheeling attacks on the nominees in the newspapers. In opposing the nomination of Roger B. Taney to be Chief Justice, for example, one Whig newspaper proclaimed that "[tihe pure ermine of the Supreme Court is sullied by the appointment of that political hack ... ." The press's role in opposing nominations during the late eighteenth and early nineteenth centuries is especially signifi- cant because at that time newspapers had a potent impact on shaping public opinion.' In the absence of any significant political activity by voluntary organizations-labor unions, for example, did not exist yet-the press represented the major intermediary between private citi- zens and their government. During the nineteenth century, political parties and private citizens also had a significant impact upon presidential selections and Senate confirmations of Supreme Court Justices.9 Voluntary organizations also had a role. 10 Private citizens, elected officials, and organizations regu- larly petitioned the Department of Justice for the nomination of partic- ular individuals for vacant seats on the Court. The petitioners usually resided in the candidate's home state or had professional or school ties with the candidate. In 1853, for example, a number of prominent Ala- bama citizens petitioned President Franklin Pierce to nominate John A. Campbell