Packages of Judicial Independence: The Selection and Tenure of Article III Judges

Transcription

1 Packages of Judicial Independence: The Selection and Tenure of Article III Judges VICKI C. JACKSON* ABSTRACT Selection and tenure rules are important parts of the packages of institutional designs that protect the independence of judges. The appointments process is a political one by constitutional design; it allows for a form of democratic participation, through elected representatives, in the selection of federal judges. Through a variety of rules some constitutional, others a matter of Senate or White House practice this process has worked in complex ways to accommodate concerns by the political branches about partisan affiliation and ideology, competence, and the demographic mix of appointees. Although most nominees to the Article III courts continue to be approved by overwhelming majorities in the Senate, the rancor of the process in recent years has seemingly sharpened, leading to suggestions for change in the Senate s voting rules on nominations. The political nature of the process in turn permits disputes to become contentious in ways, and through means, that could threaten the structures or culture of judicial independence in the Article III courts. For these reasons, the tenure rules assume special importance in safeguarding judicial independence. The long tradition that Article III judges are not removed from office based on disagreement with their legal decisions has been an important part of the package. A number of scholars have recently argued that the terms of Supreme Court Justices should be limited to eighteen years. Comparative experiences suggest that serious levels of judicial independence can be attained through long, nonrenewable terms. But such a change in an established and ongoing system, with an existing package of institutional features operating in a specific constitutional culture, would have ramifications elsewhere for the confirmation process, for the internal dynamics of the Court, for its relationship to the lower federal courts, and possibly for the stability of law that require careful and cautious consideration. For example, if Supreme Court confirmations were to happen every two years, should the package include changes in selection procedure, perhaps to require a supermajority vote to confirm? Moreover, the Article III federal courts, headed by the Supreme Court, have functioned as the judicial anchors for the supremacy of federal law in a large country whose state and federal courts use many different selection systems (including elections for fairly short terms in some of the state courts) and which has managed to sustain a serious commitment to the rule of law. The federal courts are, in a sense, part of an overall package that is the U.S. court system, whose commitment to the rule of law under the Constitution has accommodated the states freedom to adopt different approaches to judicial selection and tenure, perhaps in part by assuring the strong independence of the Article III federal judiciary through salary and tenure provisions. Careful thought is thus required before changing one of the pillars of this ongoing system. * Professor of Law, Georgetown University. 2007, Vicki C. Jackson. I am grateful to Sue Bloch, Michael Gerhardt, Jim Pfander, Judith Resnik, Bob Taylor, and Mark Tushnet for helpful comments on earlier drafts. My Research Assistants, Kate Couch, Andy Eberle, and Joe Gallagher, deserve thanks for their cheerful and careful work. Responsibility for any errors is mine alone. This Essay was written as a background paper for and presented at Fair and Independent Courts: A Conference on the State of the Judiciary, September 2006, and the research on which it is based was completed in the summer of

2 966 THE GEORGETOWN LAW JOURNAL [Vol. 95:965 TABLE OF CONTENTS INTRODUCTION A. CONSTITUTIONAL FOUNDATIONS B. CONSTITUTIONAL CHOICES C. NON-ARTICLE III TRIBUNALS I. ARTICLE III JUDGES SELECTION AND INDEPENDENCE A. RECESS APPOINTMENTS AND PRESIDENTIAL POWER B. SELECTION CRITERIA: IDEOLOGY, PARTISANSHIP, AND EXCELLENCE C. PUBLIC HEARINGS AND JUDICIAL PRECOMMITMENT D. CAREERIST VS. INDEPENDENT LOWER COURT JUDGES? E. PARTISAN RANCOR AND FRICTION II. ARTICLE III AND JUDICIAL TENURE A. LIFE TENURE AND IMPEACHMENT B. ALTERNATIVE READING OF DURING GOOD BEHAVIOUR? C. LEGISLATIVE ABOLITION OF COURTS?; OTHER CONGRESSIONAL POWERS D. RETIREMENT, DISABILITY, AND DISCIPLINE E. SALARY CONCERNS III. INSTITUTIONAL DESIGN AND INSTITUTIONAL CHANGE:REFORM PROPOSALS A. CHANGING THE SENATE S VOTING RULES B. TERM LIMITS/MANDATORY RETIREMENT CONCLUSION APPENDIX I APPENDIX II INTRODUCTION Rules about selection, tenure, and removal are parts of the packages of provisions, or institutional designs, that influence degrees and types of judicial independence and public accountability. The United States Supreme Court Justices, and the judges who serve in the federal district courts and circuit courts

3 2007] PACKAGES OF JUDICIAL INDEPENDENCE 967 of appeals, are all Article III judges, appointed and holding office pursuant to Article III of the Constitution. Nominated by the President and confirmed by the Senate, they hold office during good Behaviour and their salary cannot be reduced once in office. 1 On conventional understandings, they can be removed from office only by impeachment in the House and conviction in the Senate, by a two-thirds vote, for Treason, Bribery, or other high Crimes and Misdemeanors. 2 Article III judges are not the only federally appointed judges but function as part of a much larger federal system of judging and justice that includes non-article III federal judges and the state court judges. This Essay focuses on how the selection, tenure, and removal provisions for Article III judges relate to desirable levels of judicial independence. There are different meanings and degrees of judicial independence, different forms of accountability, and different balances between independence and judicial accountability. While all who act as judges are expected to exercise independent judgment, in the sense of being impartial as between the parties and not having a personal stake in the dispute, 3 there is disagreement about how independent from the public, or from elected political branches, judges should be in interpreting and applying the law. There is, moreover, a range of accountability mechanisms, both within the federal judiciary (for example, by appeal or internal discipline) and by the political branches that appoint federal Article III judges, fund the courts, and enact the laws (including those concerning federal courts jurisdiction). There are ranges of political responses to unpopular decisions (including constitutional amendments) that may be more, or less, consistent with the decisional independence of judges. Judges who must stand for frequent election or reappointment have more reason to be concerned that making an unpopular decision will harm their livelihood than do judges appointed under Article III. Indeed, the decisional independence promoted by the tenure and salary protections of Article III is often admired, even as the consequences of this independence in checking other branches of government can be highly contentious. The selection and tenure rules for Article III judges affect both the decisional independence of individual judges and the institutional independence of the judiciary as a whole. 4 But these selection and tenure rules do not function in isolation from other legal rules, including those governing the courts jurisdiction, when it is exercised, who can invoke it, who can change it; 5 the finality of 1. U.S. CONST. art. III, U.S. CONST. art. II, See, for example, Tumey v. Ohio, 273 U.S. 510 (1927) and cases cited infra note Cf. John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S. CAL. L. REV. 353 (1999) (distinguishing independence of individual judges from dependence of the judiciary as an institutional matter on legislative decisions e.g., about jurisdiction and funding). 5. For an introduction to the vast literature on this subject, see generally RICHARD H. FALLON, JR. ET AL., HART &WECHSLER S THE FEDERAL COURTS AND THE FEDERAL SYSTEM (5th ed. 2003).

4 968 THE GEORGETOWN LAW JOURNAL [Vol. 95:965 the courts judgments, who they bind, and how judgments are enforced; 6 judges salaries, court funding and control of administration, hiring and location of work; 7 restrictions on judges nonjudicial speech or activities; 8 and availability of pensions for disability or retirement. 9 Legal structures alone, moreover, do not necessarily result in judicial independence; they are only part of the story. Some political scientists, for example, argue that effective competition in electoral politics is most keenly associated with independent courts. 10 Important as well are the professional norms of lawyers and judges, 11 popular conceptions 6. On the importance of finality, see, for example, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) (holding unconstitutional a federal statute that in effect permitted one side of a private litigation to re-open final judgments entered by the Article III courts); on enforceability, see, for example, Martin v. Hunter s Lessee, 14 U.S. (1 Wheat.) 304, 362 (1816) (directly affirming the judgment of the state trial court rather than remanding to the state appellate court which had previously challenged the Supreme Court s authority). On the bindingness of constitutional decisions, see Vicki Jackson, The Binding Effect of Constitutional Adjudication: A View from the United States, in L INTERPRÉTATION CONSTITUTION- NELLE 246 (Ferdinand Mélin-Soucramanien ed., 2005). 7. See, e.g., Judith Resnik & Lane Dilg, Responding to a Democratic Deficit: Limiting the Powers and the Term of the Chief Justice of the United States, 154 U. PA. L.REV. 1575, & n.17, 1599 (2006) (describing Chief Justice Taft s role in establishing better control over the administration of the federal courts through, inter alia, steps that led to the Judicial Conference of the United States); cf. DONALD P. KOMMERS, JUDICIAL POLITICS IN WEST GERMANY (1976) (describing the successful efforts of the German Constitutional Court in the 1950s to obtain control over its own budget and administration, including hiring authority over its law clerks); Mark Ramseyer, The Puzzling (In)Dependence of Courts: A Comparative Approach, 23 J. LEGAL STUD. 721, (1994) (describing political control of Japanese judges through job assignments, including to less favorable geographic locations). 8. See, e.g., CODE OF CONDUCT FOR UNITED STATES JUDGES Canon 3(A)(6) (2000) ( A judge should avoid public comment on the merits of a pending or impending action... ); id. Canon 5 ( A judge should regulate extra-judicial activities to minimize the risk of conflict with judicial duties. ); see also 5 U.S.C. app. 501, 502 (2002) (limiting outside income and prohibiting many activities that could generate outside income); Heather M. Clark, Note, The Supreme Court s Indecent Proposal: Repealing the Honoraria Prohibition of the Ethics in Government Act of 1978, 87 CORNELL L. REV (2002) (discussing the honoraria ban under the Ethics Reform Act as it applies to federal judges); ABA MODEL CODE OF JUDICIAL CONDUCT Canon 3(B)(9) (2004) ( A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness... ); cf. Robert Sharlet, Chief Justice as Judicial Politician, 2 E. EUR. CONST. REV. 32 (Spring 1993) (describing the difficulties of the first Russian Constitutional Court that arose, in part, from the extrajudicial speeches and activities of its first Chief Justice). But cf. Republican Party of Minn. v. White, 536 U.S. 765 (2002) (holding unconstitutional, under the First Amendment, the state s announce rule, which generally prohibited a candidate for elected judicial office from expressing views on contested legal issues which might come before the court on which the candidate sought to serve). 9. For a study of the impact of changes in the availability and rules for federal pensions on the retirement of Supreme Court justices, see ARTEMUS WARD, DECIDING TO LEAVE: THE POLITICS OF RETIREMENT FROM THE UNITED STATES SUPREME COURT 16 19, (2003). 10. See, e.g., Ramseyer, supra note 7, at 722; Matthew C. Stephenson, When the Devil Turns... : The Political Foundation of Independent Judicial Review, 32 J. LEGAL. STUD. 59, (2003). Others suggest that economic development may be a precondition, rather than a result, of independent judiciaries. See, e.g., Daniel Klerman, Legal Infrastructure, Judicial Independence and Economic Development (Univ. of S. Cal. Ctr. in Law, Econ. & Org. Research Paper Series, Paper No. C06-1), available at See ABA MODEL CODE OF JUDICIAL CONDUCT Canon 3 (2004) (requiring judicial impartiality). For a somewhat idealized version of what those aspirations were, see ANTHONY KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993) (describing an ideal of how judges decide cases).

5 2007] PACKAGES OF JUDICIAL INDEPENDENCE 969 about law and the political culture, 12 and the capacities of all branches of government for self-restraint. 13 But it seems plausible to assume, at least for present purposes, that selection and tenure rules play some role in supporting commitments to the independence of judging and the rule of law. Current debates question whether the selection process for Article III judges allows too much room for political partisanship and consideration of judges ideology, and whether the tenure rules promote too much of, or the wrong kinds of, judicial independence. These debates raise many questions. What is it that federal judges should be independent of? What is it that they should be independent to do? Do the range and substantive nature of the courts cases affect the forms and degrees of accountability most compatible with appropriate independence? How might the selection process affect judges independence from improper influence or to perform their responsibilities under law? How do ideology and partisanship relate to an independent judiciary and our aspirations for what it should accomplish? How do existing tenure rules affect both kinds of judicial independence? Although these are too many large questions for a single paper, a brief look at the history and structure of the most directly relevant constitutional provisions may help set parameters for further analysis. A. CONSTITUTIONAL FOUNDATIONS In a sense, the question of what Article III judges were to be independent from is more readily answered. Judges were to be independent of popular passions and certain kinds of pressures from other branches of the government. These were the purposes of the provisions for life tenure, the high standard for removal by impeachment, and the clause that salaries cannot be diminished while a judge is in office. The harder question is what were judges to be independent to do? Some answers are: they were to be independent to judge according to law; they were to have the independence to interpret the law in order to render judgment; they were to protect minorities from popular passions that would violate their legal rights; and they were to check the other branches of government when they departed from the fundamental commitments set forth in the Constitution See, e.g., Ramseyer, supra note 7, at (arguing that the hands off attitude of politicians to U.S. judges is not the result of constitutional provisions but of a political culture that does not approve of efforts to penalize judges for their decisions). 13. On judicial self-restraint, see John A. Ferejohn & Larry D. Kramer, Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint, 77 N.Y.U. L. REV. 962 (2002). 14. See THE FEDERALIST NO. 78, at 226, , (Alexander Hamilton) (Roy P. Fairfield ed., 1981) (arguing that the tenure provisions of Article III will help secure a steady, upright, and impartial administration of the laws ; prevent encroachments and oppressions of the representative body ; enable the courts to enforce, as is peculiarly essential in a limited Constitution, the Constitution s limits on legislative authority, such as that it shall pass no... ex-post-facto laws and to ascertain [the] meaning of the Constitution and other laws, because the interpretation of the laws is the proper and peculiar province of the courts ; and help guard the Constitution and the rights of individuals from the effects of those ill humors, which... sometimes disseminate among the people themselves, and

6 970 THE GEORGETOWN LAW JOURNAL [Vol. 95:965 The proponents of the Constitution recognized that there were risks of according judges this kind of independence (as did their opponents). In Federalist No. 79, Hamilton acknowledged suggestions that there be a provision to remove judges for inability but concluded that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. 15 No human institution can avoid some defects, his comment suggests, and a provision for removal other than by impeachment would pose too great a risk of misuse, even if its absence allowed some lacking in ability to remain on the bench. He likewise rejected suggestions that a mandatory retirement age be adopted, as existed in New York. 16 Public accountability of the courts was to be achieved in other ways in the political selection of learned lawyers with integrity, through Congress s passage of laws (including those controlling the federal courts jurisdiction), through the possibility of constitutional amendment, and, for judicial malconduct, through impeachment proceedings to remove. 17 So, in a classic example of separated powers and checks and balances, the Constitution distributes authority with respect to the establishment and staffing of the courts between the Congress and the President, 18 and specifies that it is the courts which exercise the judicial Power of the United States. 19 Article III which...have a tendency...to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community ). Hamilton went on to argue that judicial independence was important not only with respect to infractions of the Constitution but also as an essential safeguard against the effects of occasional ill humors in the society, which may result in injury of the private rights of particular classes of citizens by unjust and partial laws. Id. at 231. In such cases, the firmness of the judicial magistracy will mitigat[e] the severity and confin[e] the operation of such law. Further, he wrote, knowing that the independent courts are there would operate[] as a check upon the legislative body in enacting laws. Id. at See THE FEDERALIST NO. 79, at 234, 235 (Alexander Hamilton) (Roy P. Fairfield ed., 1981). 16. Id. In this essay, Hamilton seemed to distinguish between insanity, which he described as a clear disqualification, and declining abilities through age. See id. For discussion of disabled judges, see infra Part II.D. 17. See THE FEDERALIST NO. 79, at 234 (Alexander Hamilton) (Roy P. Fairfield ed., 1981). 18. Article I of the Constitution provides that Congress shall have Power...To constitute Tribunals inferior to the supreme Court, a provision that should be read together with Article III s reference to one Supreme Court and such inferior Courts as the Congress may from time to time ordain and establish. Article I, Section 8 also gives Congress the power to make all laws which are necessary and proper to carry into effect the powers of other branches. Article II provides generally for appointments of federal officers, including federal judges, and specifically gives Congress the authority to provide for a range of appointment methods for inferior Officers of the United States. Thus, it states that the President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. Article II also authorizes the Congress by law, to vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Whether the judges of the Article III inferior courts could be treated as inferior officers so as to permit their appointment, for example, by other Article III Courts of Law has been discussed in the academic literature. See Appendix I, at n.16. The practice, however, has invariably been that the President nominates and the Senate confirms all Article III judges. 19. Article III provides that [t]he 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.

7 2007] PACKAGES OF JUDICIAL INDEPENDENCE 971 of the Constitution further provides that the judges of both the Supreme and inferior courts shall hold office during good Behaviour and specifies that their compensation shall not be diminished during their Continuance in Office. The need to secure the independence of the federal judiciary was a point of consensus in the Constitutional Convention. How to select those judges was, however, very much in controversy. 20 Indeed, for quite some time over the long Convention held in Philadelphia in the summer of 1787, it appeared that the Senate would have exclusive authority to appoint judges. On June 13, members of the Convention adopted a proposal by James Madison one of its most influential members that the Senate select judges. In July, a proposal to give the power of appointment exclusively to the President was voted down. Until rather late in the drafting process, the power of appointment was vested exclusively in the Senate, out of fear of giving the President the dangerous prerogative of appointing the judiciary. 21 Not until September 7 was the present rule agreed to; the Constitution was signed on September 17, 1787, and ultimately ratified by the states. 22 B. CONSTITUTIONAL CHOICES The selection mechanisms contemplated by the Constitution represent a distinctive set of choices. The Constitution does not, for example, mandate any self-replicating or professionally controlled selection process. Article III judges do not select, nominate, confirm, or appoint other Article III judges and have no formal consultative or advisory role. 23 Rather, the process of judicial nomination and confirmation is allocated to two other branches of government. Moreover, unlike in some other systems, neither the President nor the Senate has authority acting on their own to select any members of the permanent Article III judiciary. 24 Instead, the two political institutions of government must work together, in a system intended to impose significant checks on the author- 20. See FALLON JR. ET AL., supra note 5, at SHELDON GOLDMAN, PICKING FEDERAL JUDGES: LOWER COURT SELECTION FROM ROOSEVELT THROUGH REAGAN 5 6 (1997) (quoting George Mason). I am indebted to Professor Goldman s book, from which this description generally is drawn, and to his regular articles on federal judicial selection, which have been very helpful in preparing this Essay. 22. Id.at See supra note 18. Compare, e.g., COST. [CONSTITUTION] art. 135 (Italy) (providing that one-third of the judges of Italy s Constitutional Court are chosen by the ordinary and administrative supreme courts (quoting a translation, available at International Constitutional Law, Italy Constitution, (last visited Jan. 3, 2007))). Under the United Kingdom s Constitutional Reform Act of 2005, which provides for the establishment of a Supreme Court, a judicial selection commission will recommend names to the Prime Minister, and the Commission is required to consult with senior judges (who are not on the Commission and not candidates for appointment) before making its recommendation. See Constitutional Reform Act, 2005, c. 4, 23, 26, 27 (Eng.); see also Explanatory Notes to Constitutional Reform Act, 2005, c. 4 (Eng.), available at (U.K. Office of Public Sector Information). 24. Compare, e.g., GRUNDGESETZ [GG] [BASIC LAW] art. 94 (F.R.G.) (providing that each of the two houses of the German national legislature is to select one-half of the judges on the Constitutional Court); 1958 CONST. art. 56 (Fr.) (providing that one-third of the judges of the French Conseil

8 972 THE GEORGETOWN LAW JOURNAL [Vol. 95:965 ity of any one actor to make appointments to the life-tenured bench. Finally, one selection tool that the Constitution provides for some offices direct or indirect election by the people is not used for the selection of judges. Rather, by allocating selection to the President, with confirmation by the less populist house of Congress, the Framers designed a system to select persons whose competence was believed best discernible through means other than popular elections. 25 A political selection system, requiring agreement or compromise between the President and Senate, would appoint those with specialized competency in law. C. NON-ARTICLE III TRIBUNALS Other choices are reflected in an array of federal tribunals, whose judges do not enjoy Article III tenure and salary protections. 26 As discussed in Appendix I, our current federal judiciary is an amalgam of Article III judges, of other judicial officers appointed by Article III judges, of Article I or legislative tribunals in the territories and for specific subject matters (such as tax disputes, contracts or takings claims against the government, or veterans benefits), and of administrative judges who sit in executive or administrative agencies to perform their adjudicatory functions. 27 The non-article III magistrate and bankruptcy judges, whose numbers come close to those of the Article III judiciary, 28 now perform a large amount of adjudicatory work in federal district courts, in civil and criminal cases (though their decisions are in theory subject to review by Article III judges). Non-Article III, statutory federal judges may be Constitutionnel are selected by the head of the Senate, one-third by the National Assembly, and one-third by the President). On the President s power to make recess appointments, see infra Part I.A. 25. Cf. 5 DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION 188 (Debate of June 13, 1787) (Jonathan Elliot ed., Washington, D.C., Taylor & Maury 1845) (Madison, objecting to appointment by the whole legislature because they are incompetent judges of the requisite qualifications and would favor those to whom favors were owed but who lacked any of the essential qualifications for an expositor of the laws ); THE FEDERALIST NO. 78, at 226, 233 (Alexander Hamilton) (Roy P. Fairfield ed., 1981) (stating that there can be but few men in society who will have sufficient skill in the laws to qualify them for the stations of judges and have the requisite integrity and arguing that life tenure is necessary to induce such men to leave their lucrative line of practice ). 26. See Amer. Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 546 (1828) (asserting that the legislative Courts established by Congress in the territories are not constitutional Courts, in which the judicial power conferred by [Article III of] the Constitution on the general government, can be deposited ); see also Murray s Lessee v. Hoboken Land Improvement Co., 59 U.S. (18 How.) 272, (1856) (discussing public rights cases which Congress may or may not bring within the cognizance of Article III courts). The most famous Supreme Court case, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), involved a term-limited judicial office (justice of the peace of the District of Columbia). For a helpful discussion of Article I tribunals, see generally James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 HARV.L.REV. 643 (2004). 27. See Appendix I. 28. According to statistical information made available through the Administrative Office of the U.S. Courts, in 2005 there were 678 authorized district court judgeships, 179 authorized judgeships on the courts of appeals, and 855 full-time magistrate and bankruptcy judges positions. See U.S. Courts, Judicial Facts and Figures, Table 1.1, (follow link for library, then statistical reports, then Judicial Facts and Figures ) (last visited Aug. 9, 2006).

9 2007] PACKAGES OF JUDICIAL INDEPENDENCE 973 selected in a variety of ways; they are often subject to limited-term appointments; and they may be evaluated for re-appointment or continued fitness. 29 All judges are supposed to be impartial and fair-minded in judgment for reasons identified with the Due Process Clause and which may also inhere in the concept of judging itself. 30 Article III judges, however, have added institutional protections, designed to secure a greater degree of independence from political, social, or economic pressures than is required by the Due Process Clause, a degree of independence often associated with the federal courts obligation to serve as a check on the actions of the other branches of the federal government. In contrast to the statutory federal judges, for active Article III judges there are no minimal qualifications, no term limits, no regular evaluations of health or of whether the judge should continue in office. 31 Appointment of an Article III judge is an investment in and gamble on the future, for she may sit for thirty or more years. And it is Article III judges who, in the end, have jurisdiction to review questions of constitutional and other federal law from cases in the state courts as well as the non-article III federal courts and to say what the law is. 32 For this reason, the balance of this Essay will focus on Article III judges, where the stakes in the initial appointment decision are the highest, and will consider in turn their selection, their tenure, and recent reform proposals. 29. See generally Appendix I. Professor Judith Resnik uses the term statutory judges to refer to the non-article III federal judiciary. See Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 HARV. L. REV. 924, 951 (2000); Judith Resnik, Uncle Sam Modernizes his Justice : Inventing the Federal District Courts of the Twentieth Century for the District of Columbia and the Nation,90GEO. L.J. 607, 614 (2002) [hereinafter Resnik, Uncle Sam Modernizes]. 30. On the Due Process Clause and impartiality, see, for example, Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986); Connally v. Georgia, 429 U.S. 245 (1977); Taylor v. Hayes, 418 U.S. 488, (1974); Gibson v. Berryhill, 411 U.S. 564, (1973); Johnson v. Mississippi, 403 U.S. 212, 216 (1971); Tumey v. Ohio, 273 U.S. 510 (1927). But the impartiality required by the Due Process Clause does not require Article III tenure and salary guarantees, or even, necessarily, a fixed tenure of office. See, e.g., Weiss v. United States, 510 U.S. 163, (1994) (holding that the absence of fixed tenure for military judges does not violate the Due Process Clause). For a somewhat controversial application of the idea of independence as a concept inherent in judging, see Provincial Court Judges Ass n v. Manitoba, [1997] 3 S.C.R. 3 (Can.) (holding that judicial independence is an unwritten constitutional norm, applicable to all courts, which requires that an independent body be established to decide on any proposals to reduce provincial judges salaries because direct action by the legislature could threaten the judges needed independence). 31. In the 1990s, a federal anti-nepotism statute, derived from older statutes barring judges from appointing their relatives to positions in the court, was raised as a barrier to the President s nomination and Senate confirmation to an Article III judgeship of a sitting judge s relative (William Fletcher, now a Ninth Circuit judge, and the son of Betty Fletcher, also at the time on the Ninth Circuit). In the wake of controversy over this proposed interpretation, the statute was amended and its prohibitions expanded. See 28 U.S.C. 458(b) (2000); see also 28 U.S.C.A. 458(b) (West 2006) and accompanying annotations; Michael E. Solimine, Nepotism in the Federal Judiciary, 71 U. CIN. L. REV. 563, (2003). The constitutionality of this prohibition, barring presidential nomination and Senate confirmation of one who is a relative of an Article III judge sitting on the same court, has not been tested, nor has the constitutionality of the political diversity requirement for the Article III judges on the Court of International Trade. See 28 U.S.C. 251(a) (2000) (limiting the number of judges from the same political party ). For further discussion, including of annual caseload certification requirements to remain in senior status under 28 U.S.C. 371 (2000), see Appendix I, at nn.5, 6, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

10 974 THE GEORGETOWN LAW JOURNAL [Vol. 95:965 I. ARTICLE III JUDGES SELECTION AND INDEPENDENCE Although the strong tenure protections generally provided to Article III judges would seem to go a long way toward insuring independence (both from political pressure and to judge impartially and according to the judge s best understanding of the law), the number of highly contentious disputes in the nominations process, especially over lower court judges, has raised concerns in recent years about that process s effects on judicial independence. 33 Notwithstanding strong tenure protections once appointed, how might the selection process impair desirable judicial independence? Here are some possibilities. Precommitments by nominees of how they would rule (for example, on large constitutional controversies) could compromise the appearance and actuality of impartiality and a nominee s commitment to fair judicial process in the resolution of cases. Even without precommitments, a highly ideological or partisan selection process might convey the expectation that decisions should be in accord with political ideology, affecting the norms of judging according to law and also adversely affecting public views of the courts legitimacy; courts that lack public trust may be less able to function independently of popular passions. Moreover, an unpleasant selection process might discourage the best qualified from serving, yielding judges not competent enough to use their independence to judge according to law, and might also lead to escalations of political battles that affect judicial independence in other ways. Some also fear that a trend toward choosing Supreme Court Justices from lower courts could affect the decisional independence of lower court judges. Finally, recess appointments allow temporary judges to hear the most serious matters, including criminal trials, with short tenure and greater incentives to worry about the political branches evaluation of their actions. I discuss each of these points below. A. RECESS APPOINTMENTS AND PRESIDENTIAL POWER A recess appointment, according to Article II of the Constitution, is made by the President alone, during a Senate recess, and lasts only until the end of the next session of the Senate. 34 For a judge to hold such a temporary position 33. See Sheldon Goldman, Judicial Confirmation Wars: Ideology and the Battle for the Federal Courts, 39 U. RICH. L. REV. 871, 871 (2005) [hereinafter Goldman, Judicial Confirmation Wars] (analyzing the highly contentious battles over the confirmation of federal court judges in the prior two decades); Sheldon Goldman et al., W. Bush s Judiciary: The First Term Record, 88 JUDICATURE 244, 262 (2005) [hereinafter Goldman et al., W. Bush s Judiciary] (noting claims, inter alia, that the Senate Judiciary Committee has ignored blue slip objections, violated Rule IV concerning minority right to continue debate, and ignored informal rules concerning the scheduling of nomination hearings that [v]iewed collectively...all work to lessen the ability of the minority party in the Senate to exercise an effective check on the confirmation process). 34. Recess appointments are authorized by Article II, Section 2 of the Constitution, which states: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. The language of this provision raises several constitutional questions, including (1) whether the recess appointment power is available only for new vacancies which themselves happen for the first time during a recess,

11 2007] PACKAGES OF JUDICIAL INDEPENDENCE 975 seems in deep tension with the Article III requirement that judges exercising the judicial power of the United States hold office indefinitely during good Behaviour. But many Presidents, including George Washington, have on occasion made recess appointments of judges to the Article III courts. 35 President Eisenhower made three recess appointments to the Supreme Court Chief Justice Earl Warren and Justices William J. Brennan and Potter Stewart; each appointment was made shortly before national elections and each appointee was subsequently confirmed. Recess appointments have also been made to the lower federal courts. Thurgood Marshall, later successfully nominated to the Supreme Court as its first African American Justice, received a recess appointment to the U.S. Court of Appeals for the Second Circuit in 1961 because his confirmation at that time would have been opposed by southern senators. 36 A judge with a recess appointment, not yet confirmed by the Senate, has no job security beyond the next Congress, often only a few months. As a result, she may be tempted to look over her shoulder at the President (who must re-nominate her to a permanent position), the Senate (which must decide whether to confirm her), or both in carrying out her duties. Yet to interpret the Article II recess appointment power to apply only to executive branch positions and not Article III judgeships would be inconsistent with past practice. The constitutionality of recess appointments of Article III judges has not been decided by the Supreme Court. Criminal defendants tried before recessappointed judges have argued that it is inconsistent with the independence contemplated by Article III tenure and salary protections to permit a temporary judge, hoping for nomination and confirmation to a permanent position, to exercise important judicial responsibility in the interim. Thus far, such claims and (2) whether any adjournment, even a brief intrasession one, counts as a recess for constitutional purposes. The Department of Justice has consistently taken the position that the recess appointment power is not limited only to vacancies that first arise during a recess, but has taken different positions over time on whether the recess appointment power may be exercised only during intersession recesses, or are available during longer, or even shorter, intrasession adjournments or recesses. For helpful discussion of these complex constitutional questions, see Edward A. Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 CARDOZO L. REV. 377 (2005), from which my account is largely drawn; see also Michael Herz, Abandoning Recess Appointments?: A Comment on Hartnett (and Others), 26 CARDOZO L. REV. 443 (2005). Because of the risks that recess appointments could undermine the Senate s advice and consent role (if, for example, given to a person denied confirmation by the Senate and with respect to a longstanding vacancy), Congress has by legislation prohibited, with some important exceptions, paying a salary to recess appointees appointed to fill vacancies that existed for more than thirty days prior to the recess for positions where the Senate s advice and consent is required. See 5 U.S.C (2000). 35. See LOUIS FISHER, CONG. RESEARCH SERV., FEDERAL RECESS JUDGES 3 (Order Code RS22039, Feb. 2, 2005) (noting a 1983 Department of Justice report listing 309 individuals who had received recess appointments to Article III courts); Sheldon Goldman, Judicial Confirmation Crisis?, JURIST, Apr. 15, 2004, (asserting that over three-hundred federal judges received initial recess appointments since the Constitution was established). 36. See JUAN WILLIAMS,THURGOOD MARSHALL:AMERICAN REVOLUTIONARY 291, 294 (1998).

12 976 THE GEORGETOWN LAW JOURNAL [Vol. 95:965 have been largely rejected in the lower courts. 37 Presidential restraint, reinforced by the Senate s resistance and, perhaps, by the pragmatic reluctance of most lawyers to abandon existing positions for a temporary judgeship, 38 has helped limit the number of recess appointments to Article III courts. Given modern practices (including public hearings on Supreme Court nominees), the political costs of a recess appointment to the Court would be very high. Indeed, in 1960 (after President Eisenhower s recess appointments to the Court), a Senate resolution was adopted providing that recess appointments to the Court should not occur, except under unusual and urgent circumstances, to avoid interference with the Senate s advice and consent function and any appearance of compromise of judicial independence during the period of the interim appointment. 39 From 1980 until 2000, no recess appointments to Article III courts were made. 40 President Clinton s recess appointment in 2000 of the first African-American judge on the U.S. Court of Appeals for the Fourth Circuit, followed by President Bush s two recess appointments in early 2004 (one of them during a short intrasession recess and thus particularly controversial), have made clear that recess appointments to the lower courts remain a political possibility 41 though subject also to political 37. Although the challenges were ultimately rejected in the two courts of appeals which considered them on appeal from criminal convictions, one panel of the Ninth Circuit accepted the argument that recess appointees could not exercise Article III power, but it was overruled by a larger panel of judges sitting en banc. See United States v. Woodley, 726 F.2d 1328 (9th Cir. 1983) (finding that the exercise of judicial power by recess appointee is inconsistent with the Constitution and its requirements for the independence of Article III judges), vacated, 751 F.2d 1008 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F. 2d 704, 709 (2d Cir. 1962) (holding that Article II permits the President to appoint Justices of the Supreme Court and judges of the inferior courts to serve for a limited period, and accordingly that such judicial officers may exercise the power granted to Article III courts ). A third federal court of appeals likewise rejected constitutional challenges to the intrasession recess appointment of Judge Pryor in the Eleventh Circuit. Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004) (en banc) (noting, inter alia, that plenty of judges in this country (for example, state judges)... do not have all the protection of Article III judges; yet these courts are not seen to be inherently unfair, nor do they deny litigants due process on that account ), cert. denied, 544 U.S. 942 (2005). Justice Stevens issued an opinion respecting the denial of certiorari, indicating that the constitutional questions were significant and emphasizing that denial of review was not a ruling on the merits. Evans, 544 U.S. at Cf., e.g., Hartnett, supra note 34, at 429 (reporting that Justice Holmes was clear that he wanted to remain on the state court bench until confirmed). 39. See FISHER, supra note 35, at 4 (quoting from the 1960 Senate resolution). 40. Id. at On President Clinton s recess appointment of Roger Gregory to the Fourth Circuit after the Senate failed to hold hearings on his nomination, see id.; see also President Clinton Appoints Roger Gregory to the United States Court of Appeals for the Fourth Circuit, html/fri_dec_29_135529_2000.html (last visited Jan. 3, 2007). On President Bush s recess appointments, in the face of Democratic opposition to the candidates, of Charles W. Pickering to the Fifth Circuit and William H. Pryor to the Eleventh Circuit, see FISHER, supra note 35, at 6. Because the recess power was evidently intended for times when the Senate s recess prevented confirmation and effective government required the vacancy to be filled, recess appointments during short intrasession breaks, as in Judge Pryor s case, are regarded as more problematic than others. Judge Pickering resigned his office, and, after serving as a recess appointee, Judge Pryor was eventually confirmed. See Neil A. Lewis, Bush Tries Again on Court Choices Stalled in Senate, N.Y. TIMES, Dec. 24, 2004, at A6; Sheryl

13 2007] PACKAGES OF JUDICIAL INDEPENDENCE 977 constraints. 42 Because a recess-appointed judge is dependent on both Executive renomination and Senate confirmation to stay in office, such appointments raise evident concerns for the independence of the interim appointee. 43 B. SELECTION CRITERIA: IDEOLOGY, PARTISANSHIP, AND EXCELLENCE The Constitution specifies no qualifications for appointment as an Article III judge, though surrounding historical materials suggest an expectation that only highly competent lawyers should be appointed. 44 But, competence is not inconsistent with partisan affiliation or particular ideologies, 45 considerations which have long played a role both in the selection of nominees by Presidents and in the Senate s willingness to confirm. Ideological rejections that is, rejections motivated by disagreement with the nominee s or the administration s policies or legal views go back to the first administration of President Washington and the Senate s rejection of his choice for Chief Justice (John Rutledge). In 1835, soon-to-be Chief Justice Taney s nomination to the Court was initially blocked because of partisan, ideological disputes of the Jacksonian period; Judge John Parker s nomination in 1930 failed because of opposition from civil rights and labor groups; and the nomination of Abe Fortas as Chief Justice in 1968 failed, in part, because of political opposition to the decisions of the Warren Court 46 Gay Stolberg, Man in the News: A Different Timpanist William Holcombe Pryor, Jr., N.Y. TIMES, June 10, 2005, at A Democratic Senators responded to the 2004 appointments by threats to hold up votes on a number of other judicial nominees; this controversy was resolved, at least temporarily, by an agreement that no further recess appointments in the 108th Congress would be made and that twenty-five of the President s judicial nominees would have floor votes. See FISHER, supra note 35, at 6; Neil A Lewis, Deal Ends Impasse Over Judicial Nominees, N.Y. TIMES, May 19, 2004, at A For a recent argument that the Supreme Court should find recess appointments to Article III courts unconstitutional, see Steve M. Peyser, Recess Appointments to the Federal Judiciary: An Unconstitutional Transformation of Senate Advice and Consent, 8 U. PA. J. CONST. L. 61 (2006). But cf. Goldman, Judicial Confirmation Wars, supra note 33, at 901 (proposing that Presidents whose nominees do not receive a hearing in the Senate use recess appointments as a means over time to push the Senate to hold hearings on nominees). 44. See THE FEDERALIST NO. 76, at 416, 417 (Alexander Hamilton) (E.H. Scott ed., 2002) (arguing that the appointment procedures of Article II, Section 2, for presidential nomination and Senate confirmation, are designed to secure the selection of well-qualified persons of intrinsic merit and that the Senate confirmation requirement would exercise an excellent check on presidential favoritism and prevent the nomination of unfit characters ); THE FEDERALIST NO. 78, at 233 (Alexander Hamilton) (Roy P. Fairfield ed., 1981) ( [T]here can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges, and fewer still who unite the requisite integrity with the requisite knowledge. ). These passages can be understood to express both hope for appointment of the most qualified and confidence that the check of Senate confirmation would discourage nomination and prevent confirmation of those unfit for office. 45. By ideology, one could mean a set of substantive results attributable to the Constitution and laws, or one could be referring to a methodology of interpretation, associated with some, but not necessarily all, of those outcomes. Inquiries as to interpretive methodology, though sometimes used as a proxy for substantive ideology, may pose fewer risks of creating the appearance of seeking, or giving, assurances or precommitments, because its application may be uncertain in particular cases. 46. See HENRY J. ABRAHAM, JUSTICES, PRESIDENTS, AND SENATORS 74 75, 30 31, 219 (rev. ed. 1999). Of course, ideological opposition is not always successful, and a number of nominees have been

14 978 THE GEORGETOWN LAW JOURNAL [Vol. 95:965 all well before the Bork nomination. Over time, the relative roles of merit, ideology, political patronage, geography, other demographic factors, or friendship ties have varied, as has the influence of Senators in the selection process. Nominees have tended to be of the same political party as the President who nominates them, though a small percentage are not. 47 Presidential administrations have varied in the rigor with which they have pursued policy agendas in appointments, especially on the lower courts; 48 some scholarship suggests that a necessary prerequisite for doing so effectively has been a powerful coordinating role from the White House Counsel s office. 49 For many years the ABA had been given names of possible nominees before they were announced for professional evaluation, but this practice was ended in In the last two decades, in a larger political setting in which several politically polarizing issues are linked to court decisions, confirmation battles informed by ideological divides have seemed more intense, 51 accompanied by contentious resort to senatorial prerogatives in challenging presidential agendas. 52 The role (or apparent role) of ideology may have been enhanced by interest groups (some of which use judicial nominations as rallying tools) and by media coverage that tends to focus on conflict and thus on political or ideological differences in the nomination process. 53 unsuccessfully opposed on ideological grounds, including, for example, Louis Brandeis and Charles Evan Hughes. See MICHAEL J. GERHARDT, THE FEDERAL APPOINTMENTS PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS (2000). 47. See, e.g., Goldman et al., W Bush s Judiciary, supra note 33, at 269, 274 (presenting tables that show the numbers and percentages of appointees to district courts and courts of appeals of members of the opposite party for the last five administrations ranging from roughly 3% to 7% except that President Reagan appointed no Democrats to the courts of appeals). 48. See GOLDMAN, supra note 21, at 78, , , , , 359 (discussing policy agenda appointments in the Truman, Eisenhower, Nixon, Carter, and Reagan Administrations). 49. See, e.g., David S. Law, Appointing Federal Judges: The President, the Senate and the Prisoner s Dilemma, 26 CARDOZO L. REV. 479, , 488 (2005) (discussing centralization of control in the White House and related diminution in the role of Senators and of the Justice Department); see also GOLDMAN, supra note 21, at 11 n.i (noting the increased importance of the White House Counsel s office in judicial selection beginning in the Carter Administration). 50. The change in the ABA s role raised concerns about how the selection process would reliably obtain information about professional competence and judicial temperament: if the ABA s professional assessment could begin only after a public announcement, lawyers might be more reluctant to share negative information. See Goldman et al., W. Bush s Judiciary, supra note 33, at 255 (describing the concerns expressed by Elliot Mincberg); see also Appendix II at text accompanying notes Some observers suggest that while Supreme Court nominations have always been controversial, the degree of controversy over lower court nominees has escalated. See, e.g., Law, supra note 49, at 490. But cf. Michael Gerhardt, Judicial Selection as War, 36 U.C. DAVIS L. REV. 667, (2003) (reviewing earlier periods of conflict over lower court nominees under Presidents Grant, Hoover, and Carter). Whether a higher percentage of modern nominees are controversial or whether the increase in disputes is related to the larger numbers of appointments to the inferior Article III courts, the publicity surrounding those contentious nominations colors perceptions. 52. See Goldman, Judicial Confirmation Wars, supra note 33, at 892, 900 (noting that, in the Clinton Administration, Republican holds prevented many nominees from receiving hearings and in the Bush Administration, Democrats filibustered several lower court nominees). 53. For discussion of the role of interest groups around the confirmation process, see, for example, LAUREN COHEN BELL, WARRING FACTIONS: INTEREST GROUPS, MONEY, AND THE NEW POLITICS OF SENATE