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Judicial Appointments in the Ford Administration:
This story on a planned oral history of the Ninth Circuit has an interesting tidbit about the nomination of Senior U.S. District Judge William Schwarzer during the Ford Administration:
  Schwarzer, a Ford appointee, said he voted more for Democrats than Republicans. But when a friend in Mill Valley, Calif., ran for the county's board of supervisors in the 1960s, Schwarzer and his wife registered Republican to give him two more votes in a contested primary.
  They never changed their registration. So when political operatives did background checks on him, he came back a Republican, making it OK for Ford to appoint him.
Hat tip: Howard.
Paul B:
The story doesn't make sense. County Supervisors are not elected by party in California.
1.8.2008 2:58am
Jay:
Maybe it was different in the 1960s.
1.8.2008 5:24am
NI:
Maybe I just have a bad memory but I think things were less partisan back then. Nixon put Democrats in his cabinet (and Clinton put at least two Republicans in his cabinet). Jerry Ford had friends on both sides of the aisle and it's not inconceivable that he wouldn't have held party membership against an otherwise qualified nominee.
1.8.2008 8:32am
GV:
I think NI has it right. There were a lot of judges appointed back then who were members of the opposing party; maybe not as a precentage, but as an absolute number. There are still a small handful of republican judges on the bench who Carter put there.
1.8.2008 8:45am
taney71:
It was still very partisan. JFK appointed almost all Democrats. So did Johnson. Carter did the same.

Eisenhower said he was willing to pick Democrats once a balance on the courts came about after 4 terms of FDR and then that of Truman. Check out Goldman on the partisan make-up of the federal bench or go to the Federal Judicial Center. Basically Democrats picked Democrats and Republicans picked Republicans.

Sure there were deals in various states. I believe New York had a 1 to 3 (judge) exchange between the senators. And California forced Nixon to do the same. Still the exceptions do not disprove the general rule.
1.8.2008 10:16am
taney71:
Oh, I remember many Republicans getting ticked at Nixon for not making the partisan appointments that Democratic presidents had. I get the feeling that Democrats were much better at the partisan appointment game from the 1930s-late 1970s.

More than likely because the Republicans didn't have great political creatures in the White House. Eisenhower wasn't the political animal that FDR or Truman was and he certainly didn't have the political adviser in James Farley. Nixon learned how to appoint under Eisenhower. Ford was handicapped because of the impeachment and pardon mess. He was trying to mend fences with some of his appointments. It wasn't until Reagan until you got a Republican president who had the power and knew what to do with it.
1.8.2008 10:20am
Dave N (mail):
GWB has also appointed Democrats--most notably, Norm Mineta served 6 years as Secretary of Transportation. Additionally, GWB kept Clinton's CIA Director, George Tenet.

I am pointing this out not to make any kind of claim that his has been a bipartisan administration--but rather that EVERY administration in memory has had, at one point or another, a member of the opposite party at in its cabinet.
1.8.2008 10:47am
NickM (mail) (www):
Jay - it wasn't. Paul B. is right.

Nick
1.8.2008 10:49am
PLR:
It's unfortunate that a lawyer has to sign up to one of our deeply flawed political parties in order to be considered for a seat on the bench.
1.8.2008 10:54am
TerrencePhilip:
It's unfortunate that a lawyer has to sign up to one of our deeply flawed political parties in order to be considered for a seat on the bench.

and as often as not, raise a lot of money for said party.
1.8.2008 11:03am
Steven Lubet (mail):
Until the Reagan administration, I believe, the practice had been for senators (or house leaders, if the state did not have a senator of the president's party) to name appointees to both the district and circuit courts. In the Nixon/Ford years, for example, Sen. Charles Percy named relatively apolitical moderates (of both parties) to fill Illinois seats. That made political sense for Percy, who depended on crossover and independent voters.

As I recall, Reagan stopped deferring to senators for circuit court seats, but continued the practice for district court appointments. (The New York situation -- which I believe Reagan also terminated -- involved a deal between senators of different parties, with each agreeing that the other could have one out of four appointments.)


I raise this only as a matter of historical interest, without comment on the desireability of either approach. And I could be wrong about some of the details.
1.8.2008 11:46am
CJColucci:
I don't believe Reagan terminated the New York "1 out of 4" deal for district judges. Reagan was elected President when I was in law school and I first heard about the deal as a description of then-current selection practice after I had graduated. My recollection is that it lasted until Schumer's election, which gave us 2 Democratic senators. (I was never clear whether there was an even split or the senior Senator got more picks.)When Bush became President, and there were no Republican Senators, there was quite a bit of fuss over who would be the point person on judicial appointments, with then-Governor Pataki and the senior republican in the NY House delegation squabbling for a while.
1.8.2008 12:09pm
David M. Nieporent (www):
GWB has also appointed Democrats--most notably, Norm Mineta served 6 years as Secretary of Transportation. Additionally, GWB kept Clinton's CIA Director, George Tenet.
And don't forget Roger Gregory.
1.8.2008 12:09pm
NI:
The real problem here is that both parties place ideology over competence. There are Republicans who think every judge should be a member of the Federalist Society, and Democrats who think that every judge should be a member of the ACLU. Of course both the Federalist Society and the ACLU have perfectly competent lawyers that would make perfectly competent judges, but they also have a certain number of incompetent hacks. And when ideology is elevated over competence, the law of averages is that you're going to end up with a certain number of hacks on the bench.

I once practiced law in a state in the Northeast Corridor that shall here remain nameless. Its Republican governor decided that he wanted to put more minorities on the bench, so he went looking for a Black Republican lawyer in New England (I think there are maybe three of them). Well, he found one, and let us say the one he found isn't exactly Mensa material.

I once had a hearing in front of him in a Joe Doe case involving psychiatric records. Halfway through he called us up to the bench and said, "I used to know a guy named John Doe; I wonder if this is the same guy?" Opposing counsel and I went into the hallway and settled the case; neither of us wanted Judge Idiot making findings of fact. And what's really scary is that twenty years later he's still up there on the bench making decisions about people's liberty and complex business torts.
1.8.2008 12:22pm
Duffy Pratt (mail):
NI:

Did it ever occur to you that the judge may have been trying to scare you both into settling ;)
1.8.2008 12:35pm
Clayton E. Cramer (mail) (www):

The story doesn't make sense. County Supervisors are not elected by party in California.
I can tell you that in the late 1970s, county supervisors were non-partisan races in California. I don't think someone's story makes sense.
1.8.2008 12:55pm
Paul B:
The discussion here needs some context. The ongoing ideological conflict over judicial appointments that has existed over the last 25 years and shows no sign of ending is unique in our history. There have been three periods in American history (Marshall, Taney, and FDR) where the SupremeCourt was at the epicenter of American politics, but in each of these cases, definitive elections determined court appointments and decisions, and the judiciary returned to a minor role in American politics.

Judicial appointments, especially those below the Supreme Court, were mostly viewed as patronage. As someone previously pointed out, these appointments were effectively made by Senators, subject to the administration's veto rather than the other way around. Typical judicial appointments were men who were active in politics as part of their legal career, well regarded partners of law firms who wanted the prestige and light workload (back then)of a federal judge, and best of all, those whose law school roomate became a U.S. Senator.

I suspect that the Volokh conspiracy members and many of the posters here with their top law school/law review/clerkship/law professor backgrounds would, if you injected them with truth serum, tell you that they and the current federal judges who have backgrounds like them are far superior to the judges appointed under the previous system. While there certainly were more clunkers under the previous system, I would suggest that a major part of the reason that judicial appointments have become so contentious is that fewer appointees have been active participants in the legal and civic life of their communities. Instead they are more concerned with intellectual and legal brilliance with all of the dangers that arise when they feel the need to insert that brilliance into our political system from the bench.
1.8.2008 1:07pm
TerrencePhilip:
Paul B,

that is an interesting point of view, if impossible to quantify. I think the "traditional" concept of the judicial career path you describe still holds true for many federal judges, especially the district judges. The appellate court selections are certainly more ideological-- if you're a district judge considered for the circuit court, I'm sure they look at everything you've done and only a handful of "wrong" decisions might be enough to tip the balance away from you. (War story: a judge in my home district is very intelligent but reputed to be quite bitter that his party chose to pass him over for appellate consideration; in his formulation of it, he made a concerted effort to be fair to all sides rather than lean one way so as to be one of his party's guys, and this is what cost him.)

Even at the appellate level though, for every rock-star ideologue there must be 10 to 20 district judges or judges from the state system, or less commonly, lawyers straight from private practice (I'm guessing these are the guys who really pulled in the dough for their party).
1.8.2008 7:53pm
Hans Bader (mail):
And yet, Judge Schwarzer was less "liberal" in the sense of being biased toward civil plaintiffs than many GOP appointees in the San Francisco Bay Area, most of whom have been liberal, although not as liberal as the Democratic appointees, many of whom are so left-wing that they are almost off the map ideologically.

If you want summary judgment dismissing a weak or meritless claim, Schwarzer is a better bet than most of the judges. He has a mostly non-ideological record.

Kennedy appointed the nominally Republican Weigel to the bench in the Bay Area. Weigel who was more liberal in his judicial record than Schwarzer.
1.9.2008 11:45am