John Roberts Appoints Judges to More Than the FISA Court

Among his non-judicial duties, the Chief Justice of the United States selects sitting federal judges to serve on the Foreign Intelligence Surveillance Court in addition to their regular judicial duties. A recent New York Times article reported that ten of the court’s 11 current  judges, all selected by Chief Justice John G. Roberts, Jr., were appointed to the bench by Republican presidents, as were 86 percent of all Roberts’ designees to the court. Critics say that a FISA court dominated by Republican appointees is likely to be overly sympathetic to government requests. This controversy has awakened a broader debate about the authority that has accumulated in the office of chief justice.

In this brief article, I report a more nuanced party-of-appointing-president make-up of another group of Roberts’ appointees—the chairs of the committees of the United States Judicial Conference. Examining those appointments is important because the work of the Conference is consequential and because the appointments shed light on how Roberts performs his role as chief justice. In a word, he has named more Republican than Democratic appointees as committee chairs, but that is explained in part by the shifting pools of judges reasonably eligible to serve.

The Judicial Conference

The chief justice presides over the Conference, a statutory body comprising the chief judges of the 13 courts of appeals and district judges elected by the district and circuit judges in the 12 regional circuits, and the chief judge of the International Trade Court.

Most Conference work gets done through its 25 committees, who develop proposals for Conference consideration at its one-day biannual meetings. The chief justice appoints the committees’ over 200 members, almost all of them federal circuit and district judges. Most chairs serve for three-year terms.

The Conference’s work has significant consequences for the administration of federal justice. Committees, for example, develop rules that govern the processing of judicial misconduct complaints, maintain the advisory Code of Conduct for United States Judges, propose changes in the procedural rules that govern the conduct of federal litigation, develop the judiciary’s annual budget request and oversee the administration of the money Congress provides (now about 6 billion dollars), and provide Congress the branch’s official position (when it has one) on proposed legislation affecting the courts.

Numerous factors influence the selection of judges to chair these committees: time on the bench, willingness to serve, subject matter expertise, interpersonal skills, contacts with members of Congress and with the administration, geographic balance, and what Chief Justice Earl Warren characterized, in a Peter Fish paraphrase, as “coincidence of views with those of the Chief Justice on particular issues.”

There can be some ideological dimension to this activity—for example, recommending procedural rules that favor defendants or plaintiffs or prosecutors; advising Congress as to bills expanding or restricting federal jurisdiction; recommending sentencing policies to Congress and the U.S. Sentencing Commission; drawing lines between judges’ obligations to be free of conflicts of interest and their often wholesome desire to participate in public debates about the law and public affairs; implementing the Criminal Justice Act’s mandate that the judiciary provide lawyers for indigent defendants; and being generous or parsimonious in seeking and in spending public funds. Democratic appointees will not all have the same take on these matters, nor will all Republican appointees, but there are likely to be differences between the two groups.

Moreover, appearances matter. The federal judiciary at any one time includes judges appointed by presidents of both parties, and they have a legitimate interest in seeing some balance among those with major responsibilities for national administration policy.

Roberts’ Committee Chair Appointees [1]

Since assuming office in late 2005, Chief Justice Roberts has designated 58 committee chairs; 24 were named to the bench by Democratic presidents, 33 by Republican presidents, and one is a bankruptcy judge (appointed his court of appeals).

*–Does not include one bankruptcy judge

By contrast, 77% of Chief Justice Rehnquist’s chairs were Republican appointees.

Roberts’ 42%-58% split in Democratic- and Republican-appointee chairs is wider than the 50-50 split in early August 2013 among all active status judges (almost all the chairs were in active status when named). But these 2013 percentages—while readily available—nevertheless under represent the percentage of Republican appointees on the bench in all the years since 2005, in particular from 2005 to 2008, before Obama began adding Democratic appointees to the mix. On Inauguration Day 2009, the Democratic-Republican appointee split among active circuit judges was 40%-60%.

The Executive Committee is probably the most important Conference committee. It acts for the Conference between sessions and is often the point of contact with high officials of the other branches. The chief justice selects its chair and members from among members of the Conference, whose selection is out of the chief justice’s hands. For most of Roberts’ tenure, Conference members were mostly Republican appointees—22 of the 26 in 2005, and 15 as recently as 2010. Roberts’ appointees to the Committee—eight Democratic appointees and 10 Republican appointees (44%-56%)—roughly mirror his 42%-58% balance among committee chairs. Today, a slight majority of Conference members—15 of the 26—are Democratic appointees, but of the seven judges currently on the Committee, all but one is a Democratic appointee.

Roberts, on the other hand, has turned more heavily to Republican appointees to chair the six committees that recommend changes in the procedural rules—a “standing committee” and advisory committees on the rules of appellate, bankruptcy, civil and criminal procedure and of evidence. Of the12 circuit and district judges he’s picked to chair those committees, nine had been appointed by Republican presidents. The nine designations involved seven judges, two of whom Roberts named to chair one of the advisory committees and then the standing committee. (Four of those seven, like Roberts, clerked for conservative Supreme Court justices.)

Explaining the Party-of-Appointing President Variation

As noted, numerous factors might explain Roberts’ choices for committee chairs—tenure, knowledge, connections, geographic balance, to name a few. Only a babe-in-the-woods would think that ideology-tinged approaches to how the judiciary should be administered—for which party of the appointing president can be a crude surrogate—played no role. Even though the overall party-of-appointing-president balance among Roberts’ chairs has been roughly in line with that of all circuit and district judges, Republican appointees nevertheless have dominated his appointments, especially today, when Republican appointees chair 16 of the 25 committees.

But before assuming a simple partisan or ideological preference in Roberts’ appointments, consider the shifting pools of judges reasonably eligible to serve as chairs. Although no rule dictates how long a judge has to be in her judicial position before being considered to chair a Conference committee, judges need to get familiar with their primary job before taking on secondary jobs. Those selecting them for those jobs want to see a track record. Are they, for example, efficient enough at managing a docket to be able to take on more work? Furthermore, most judges, before they chair a committee, have served at least one term as a committee member, and judges rarely get named to committees unless they have been on the bench for at least a few years.

Roberts’ committee chairs had been in their judgeships an average of 14 years when named as chairs. That helps explain why no Obama appointees have been committee chairs.

Presidents’ cohorts of judicial appointees will have different time-in-position ranges. From 2005 through 2008, 14 of Roberts’ 27 chairs were Clinton appointees (and those 14 judges had been on the bench an average of 12 years when Roberts designated them); the rest were mainly Reagan and H.W. Bush appointees. From 2009 to the present, 10 of 31 chairs were Democratic appointees (all Clinton), and 21 were Republican (mostly W. Bush) appointees.

Put differently, in 2005 to 2008, even though the judicial branch as a whole was heavily dominated by Republican appointees, slightly over half the committee chairs whom Roberts named were Clinton appointees. From 2009 to the present, even as the Republican appointee domination was abating, Roberts was naming more Republican appointees to chair committees—thanks to the lengthening tenure on the bench of W. Bush’s appointees. The number of Bush appointees is likely to increase, at least in the short run. Only 174 of the 299 Clinton appointees on the bench today are in active status (and some have already chaired committees) compared to 290 of the 301 W. Bush appointees on the bench. But as Obama appointees accumulate tenure they will start appearing among the ranks of committee chairs.

Wrapping Up

The 42%-56% party-of-appointing-president balance among Roberts’ committee chairs has favored Republican appointees, but only slightly overall, and noticeably less that his predecessor’s committee appointments and Roberts’ FISA court appointments. At least in respect to committee chairs, an often-unnoticed factor is simply the shifting balance among judges who appear to be within the informal zone of tenure-based eligibility for selection.

[1] I base what follows on information I have culled on Judicial Conference and committee membership, including but not limited searches of the on-line archives of the judicial branch newsletter, The Third Branch, and of the Federal Judicial Center’s Biographical Directory of Federal Judges.