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November 2, 2008

Creating a (merit-based?) circuit court short list for the Prez candidates

In the closing days of the Presidential campaign lots of attention has been given to judicial appointments, including possible appointments to the circuit courts as well as to the Supreme Court.  (Recent examples come from Politico and the National Review and the National Law Journal.)  Though many have speculated about Supreme Court nominee short lists, I have not seen much buzz on exactly who could be on short lists for nominations to the federal circuit courts.

Of course, the results on Election Day and other national and local political forces will have a profound impact on who gets considered and nominated for openings on the US Courts of Appeals.  And, if the Senate has nearly 60 Democrats, a President McCain would have to make bipartisan nominations, while a President Obama would not have to (but still might) worry about Republican opposition to his choices.  But, even before this week's election results, perhaps we should start assembling a list of potential talent whom, based on substantive abilities, should be seriously considered for an appointment to the federal circuit courts in a new administration.

As a sentencing nut, my own short/wish list of potential circuit court nominees is comprised mostly of federal district judges and state court judges who have written thoughtful sentencing and criminal justice opinions.  Moreover, I genuinely hope that the next president, whomever he may be, will consider nominating to the circuit courts thoughtful federal district and state judges aligned with both political parties.  Especially in the arena of sentencing law, I believe perspective matters a lot more than politics.  More generally, I have long thought that the work of federal circuit courts benefit from having smart and dedicated judges coming from a lot of diverse legal and social perspectives.

So, dear readers, I hope you will use the comments to help the candidates start putting together a circuit court short list. 

Some related SCOTUS short-list posts (both recent and distant):

November 2, 2008 at 08:04 AM | Permalink


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If you want more diversity of perspective on the Circuit Courts, you shouldn't be asking Pres. Obama (if elected) to appoint Republicans. We've got a gracious plenty of the varieties of Republican perspective on the Circuit Courts already.

Posted by: Sam Heldman | Nov 2, 2008 8:40:42 AM

"More generally, I have long thought that the work of federal circuit courts benefit from having smart and dedicated judges coming from a lot of diverse legal and social perspectives."

I think the real answer is that we need more people from outside the law or the courts. This is the first time in American history where all nine SC justices have come directly up through the ranks. And I think this fact has produced a court that is excessively formalistic and culturally insular. There are way too many "how many angels can dance of the head of the pin?" decisions being written. I would like to see more judges appointed who have significant career experience outside of the law. People not merely from politics and academia, but people from business, the military, non-profits and the sciences. Justice Holmes stated that the common law was developed by "men of action". And by that he implicitly meant men of little or no legal training. I don't think that in a modern industrial society we can go back to those days pined for by Holmes, but I do think that the pendulum has swung too far in the opposite direction. I don't think we need more ideas on the court, or a wider diversity of intellectual perspective. What the judicial system needs is a greater diversity of life experiences.

Posted by: Daniel | Nov 2, 2008 9:27:55 AM

Nancy Gertner, US District Court, D Mass. Scholar, teacher, former criminal defense and civil liberties lawyer. Very smart, creative and courageous, and a pleasure to appear in front of, to boot.

Posted by: pubdefender | Nov 2, 2008 12:08:53 PM

Wouldn't it be refreshing to appoint a non-attorney to the bench. Perhaps one of our leading pro-se litigants who really cares about the Bill of Rights, fairness, and justice. Someone with a broad career in the sciences or in some field other than the law!

Posted by: Dr Linda Shelton | Nov 2, 2008 12:42:11 PM


Perhaps foolishly, I decided to take your challenge literally. I spent several hours this morning working through a list of names of non-judges who had the intellectual capacity and the demonstrated work ethic necessary to be a federal judge. If I were President, these are people I would consider looking at. Whether any of these people have an interest in doing the job is another matter. But if people like myself are going to complain about the cultural insularity of the law, we ought to start putting forward names of real people who we would like to see on the bench. I deliberately shied away from traditional liberal/conservative divides either in terms of politics or judicial philosophy and instead focused on people who would be able to handle the job yet inform the law with their non-standard career paths. In no particular order:

Louis Menand
Michael Bloomberg
Joy Harjo
Amory Lovins
Phil Zimmerman
Sandy Szwarc
Meg Whitman
Wesley Clark
Barry Lopez
Richard McBrien

Posted by: Daniel | Nov 2, 2008 2:09:29 PM

I think how some non-elected states due their court appointments, at least unofficially, is something the next administration and Senate should consider. NJ, for example, has, at least to my understanding, a practice about trying to keep an equal number of judges from both parties on a given court (so for example a county with 17 judges might have 8 dems, 8 reps & 1 independent). The net effect is that the bench on any one court doesn't end up with lopsided results, such as 7 republicans and 2 dems, and the focus can be on getting the best judge rather than the youngest, ideologically pure kid you think you can jam through the confirmation process.

As much as 62% of the lower federal courts are now R appointed. 77% of the SCOTUS was R appointed, including several firebrands. If the Rs do not do something they will be (and perhaps rightfully should be) hoisted on their own petard.

A simple agreement between the parties about ideological balance in the federal courts could prevent what is almost certainly about to happen. Assuming the mandate Gallup is forecasting, however, is correct and we have Pres. BHO with a 57-60 D senate, the likelihood of balancing the federal judiciary in anyway but the old fashion one (including potentially tacking on new slots for the various benches) seems remote.

Posted by: k | Nov 2, 2008 5:41:50 PM

“I spent several hours this morning working through a list of names of non-judges who had the intellectual capacity and the demonstrated work ethic necessary to be a federal judge.”

Oh come on. I like federal judges as much as the next guy, but none of those things are really “necessary” to be a federal judge. No federal judge in history has ever been impeached for ruling in favor of the government every time.

Posted by: S.cotus | Nov 3, 2008 12:26:40 PM

Ana María Polo (Cuban born)
Attorney since 1989
currently practicing in Miami, FL.

Excellent judgment. She's USSC Judge material.

Posted by: a'e | Nov 10, 2008 4:42:19 PM

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