As we have mentioned from time to time, Michigan's two Senators have proposed that a "bipartisan committee" be formed for the purpose of submitting the names of nominees for Federal judgeships. The idea, it seems, is to have this committee decide who the nominees should be. This proposal has justifiably been rejected by the President, because it is of course his prerogative to nominate candidates for Federal judgeships.
The State of Wisconsin has a Federal Nominating Committee in place, and this led me to investigate to find out more about it. The Wisconsin Committee consists of 11 members, four appointed by the two Senators representing Wisconsin, four appointed by Rep. James Sensenbrenner (the ranking Republican Congressman and chairman of the House Judiciary Committee), and two appointed by the State Bar of Wisconsin. The 11th member is the dean of a law school, Marquette University for the Eastern District and UW Madison for the Western District. This commission has been in existence since 1979. A crucial point is that it does not select nominees; rather, its purpose is to consider applicants and offer recommendations to Wisconsin's senators as a beginning point for their pre-nomination involvement. Typically, it will offer two to three recommendations for each vacancy.
The White House is not in any way bound by these selections, and I suppose that the Senators are not either. As a practical matter, since the Senators have devised this method for the screening of potential candidates, they will usually choose one of the individuals proposed as their candidate. The White House is not bound by the Senators' preference, but as a practical matter the Senator who is a member of the President's party is usually given the privilege of recommending a candidate.
In Wisconsin, as in Michigan, both Senators are Democrats. That has not presented a major problem in the nominating process in that state, probably because (unlike Michigan's Senators), the two representing Wisconsin have an appreciation for the proper role of different-party Senators in the nominating process.
This leads me to conclude that there is no reason that Michigan's Senators could not devise a similar committee to serve the same purpose in this state. Nothing in the Wisconsin system other than the usual courtesy afforded to Senators binds or obligates the White House, yet in Wisconsin candidates are screened, names are submitted, and nominations are made. The only reason that our two Senators are suggesting something more is, again, more partisan bickering standing in the way of something substantive being done.
Update -- I came across John Dean's June 2001 Findlaw article entitled "Selecting Federal Judges: The New, Less Partisan California Plan", describing a similar plan in effect in California and, he says, accepted by the President. In that state, each of four panel consists of one lawyer appointed by each of the two Senators (both Democrats), one more appointed jointly between them, and three appointed by the White House's local representative. He comments:
"Moreover, given the requirement of a majority vote within each panel, candidates on the far right or left are not going to pass muster. Thus, the arrangement should produce highly qualified but moderate candidates."
Also of interest is a wry quote attributed to Robert Kennedy, to the effect that, given the political realities of the process, it is more accurate to say that Senators appoint Federal judges with the advice and consent of the President.
In March 2001, Dean included in "Why The Senate Should Have An Earlier, Larger Role In Justices' Confirmations: Giving Force To The Constitution's 'Advice And Consent' Language" the following plain-spoken comment:
"In contrast, when filling lower federal appellate and trial court judgeships, the president does consult with certain Senators — those in whose State the judge will sit. This sharing of the appointment power by the President and Senate is not, however, the result of a laudable decision by presidents to follow the Constitution. Rather, it has occurred because Chairmen of the Senate Judiciary Committee, who preside over the confirmation process of Federal judges, have demanded it.
"Over the past half century, the Senate has developed practices and rules that give it a shared role in the selection of lower federal court judges. Stated bluntly but accurately, this process is one of pure blackmail: Either the Senate is given its part in the selection process, or it will not process the president's nominees."
8:16:58 AM
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