The inauguration of President Bill Clinton, who will appoint more than three hundred new federal judges, affords an auspicious occasion for rethinking the process of federal judicial selection. The current federal bench, two-thirds of whose members were appointed by Presidents Ronald Reagan and George Bush, reflects increased conservatism and is quite homogeneous in terms of race, gender, and political perspectives. For instance, President Reagan appointed a dramatically smaller, and President Bush named a substantially lower, percentage of African-Americans than did President Jimmy Carter. The Republican chief executives made these appointments although they had much larger, more experienced, pools of female and minority attorneys from which to select judges.
The substantive decisionmaking of many Republican appointees also manifests conservatism. For example, the judges have restrictively interpreted the Constitution and congressional legislation, have limited federal court access, and have narrowly viewed the rights of individuals accused of crime. The Republican Presidents, accordingly, achieved their expressly stated objective of creating a more conservative judiciary, even though they arguably exceeded popular consensus in appointing judges. The factors above have apparently increased public cynicism about judicial selection and may have eroded respect for the federal courts.
All of these considerations, particularly the advent of a new administration and growing disillusionment with the process of choosing judges, make the present a propitious time to reconsider selection. This Article undertakes that effort. The .Article first examines how Presidents Carter, Reagan and Bush named judges. It assesses the goals articulated, the procedures employed, the judges confirmed, and the decisional records of those appointed. Because this evaluation finds that the processes for choosing judges were problematic, it concludes with suggestions for improving federal judicial selection.
Carl Tobias, Rethinking Federal Judicial Selection, 1993 B.Y.U. L. Rev. 1257