The Brookings Institution, The Governance Institute, and the Institute for the Advancement of the American Legal System, University of Denver

Options for Federal Judicial Screening Committees: Where They Are in Place, How They Operate, and What to Consider in Establishing and Managing Them

Executive Summary

Selecting federal judges is a time-consuming and increasingly contentious process. Home-state senators, particularly those of the president’s political party, have historically enjoyed the prerogative to propose nominees to the White House. Traditionally, senators have identified potential nominees through relatively informal means. This guide describes senator-appointed committees that screen potential nominees as alternatives to those informal means. Committees can preserve the senators’ prerogative while being more open, transparent, and inclusive.

The Governance Institute and the Institute for the Advancement of the American Legal System at the University of Denver, and the Governance Studies program at the Brookings Institution prepared this report to describe, from the admittedly limited information currently available, how such screening committees have been constructed and how they typically work. It outlines factors that senators and their staffs may wish to consider in creating a committee, and highlights issues to consider with respect to committee operations. Our goal is to identify some of the choices that legislators, their staffs, and committee members will face, and to suggest an array of options; our goal is not to prescribe “best practices.”

Screening committees have been in use by some senators for more than 30 years. In 1977, President Carter created a national committee to screen potential nominees for the U.S. courts of appeals, and he urged senators to appoint their own committees for district judgeships. Senators in 29 states responded, but by the time of President George W. Bush’s administration, committees were in place in only eleven states. 2009 saw an upswing in their use, with the number of committee states increasing to at least 21 (and the District of Columbia) as of September 2011, embracing 420 (62 percent) of the 673 life-tenured district judgeships. Information on their operation—even their existence—is not abundant, however.

The reasons senators may choose to use screening committees include the hope that an individual who has the endorsement of a committee may move to nomination and confirmation more quickly. The record during the Obama administration offers little empirical support for that hope, although differences in confirmation times are affected by many factors other than the work of committees. Other advantages of a committee process may include the ability to screen applicants and catch problems before any ABA or White House involvement; providing a voice to varied constituencies, including non-lawyers and members of both political parties; and inviting applications from individuals who might not otherwise come to the senators’ attention.

Below is a decision tree for senators and their staffs regarding the creation of a committee, and for committee members about the operation of a committee: what are the decisions to be made and what are the options from which to choose? The decision tree provides senators, their staffs, and committee members with a roadmap drawn from the experience of other senators.

REASONS to consider the use of screening committees:

  • Ease contention and delay in the nomination-confirmation process
  • Anticipate and complement ABA reports
  • Provide a voice not from the president’s party, without compromising the ultimate
  • choice, to preserve partisan prerogatives in the nomination process
  • Open the process to more applicants
  • Enhance public trust in the process

STRUCTURE of the committee:

  • Creation by one or both senators
  • One or more committees: a geographic question
  • Bar association collaboration
  • Jurisdiction of the committee: district judgeships only, or circuit judgeships and U.S.
  • attorney and marshal positions as well
  • Permanent or ad hoc
  • Committee size
  • Formal bylaws or other governing documents, or informal process

APPOINTMENT of the committee members:

  • Lawyers only or lawyers and others, and what mix of trial and other lawyers
  • Political representation/bipartisanship
  • Demographic representation
  • Judge participation
  • Chair, co-chairs: independence, visibility, experience

OPERATIONS of the committee:

  • Guidance from the senator(s)
    • Criteria for evaluating applicants
    • Confidential aspects of the process versus public aspects
    • Roles of the senators’ staff
    • Whether the senators will interview the candidates
    • What information the senators want from the committee in addition to names
  • Funding of committee operations
  • Application process: notice, forms, deadlines
  • Developing the list of potential nominees to be vetted: procedures to govern the
  • committee’s decisions/process in advance (even if informal)
  • Background research: who does it, how much, and what portions are confidential
  • Organizing and conducting interviews
  • Releasing information: when, how much