Picking Federal Judges: A Mysterious Alchemy

I have twice been nominated to the federal bench by President Clinton. The first nomination, in December 1995, lapsed at the end of the 104th Congress. I was renominated in March 1997. I have never had a hearing and never had a letter from the Senate Judiciary Committee requesting additional information. In 1995 and again in 1997 the White House precleared my nomination with my two home-state Republican senators. Originally, I was nominated before the scheduled retirement date of the judge I was named to replace, which gives knowledgeable readers an idea of the lack of controversy surrounding my appointment. I had strong bipartisan support. In July of 1997, however, almost two years to the day after I was first recommended to the President by the Texas congressional delegation, my affirmative blue slips were suddenly withdrawn by the Texas senators. For those readers who have no idea what withdrawal of blue slips means, I recommend perusing Sheldon Goldman’s Picking Federal Judges: Lower Court Selection from Roosevelt Through Reagan. It should be read by every lawyer who wants to be a federal judge as well as by those who practice in front of them. Much of its importance resonates in the current political atmosphere and can be seen in the increased attention given to presidential nominations, judicial or otherwise, in both the popular press and legal academia. This is due in part to the personal peccadilloes of the nominees – consider, for example, former Senator John Tower’s lifestyle, which was so criticized by his fellow Republicans, or Zoe Baird’s failure to pay social security on domestic help despite two large professional incomes. The nominee becomes a caricature of a social problem and an object lesson for the public. It is also important to a growing understanding of the role these once-anonymous persons play in the life of the Republic and in the lives of each of us. This latter realization may account for the proliferation of scholarly articles devoted to the nomination process that have appeared in the last few years. These articles, however, are not likely to be read widely even in legal circles. Goldman’s book provides information to lawyers, judges, the press, and the general public in an anecdotal format and with an astounding amount of insider detail – including handwritten notes between presidents and their confidants. He spends little time on well-covered Supreme Court nominations, concentrating as his subtitle says on lower court selection. Goldman’s book is a work of political science, and it is short on the historical context that would be useful to interpret the tables located throughout the text. In fact, it does not tell you nearly enough about blue slips. But it certainly will allow you to refute the common misconception that the politicization of nominations started with Judge Bork.