Michael J. Gerhardt (University of North Carolina at Chapel Hill School of Law) and Michael Ashley Stein (William & Mary Law School) on "The Politics of Early Justice, Lower Court Federal Judicial Selection 1789-1861", forthcoming on the Iowa Law Review
Here the abstract:
Almost every commentary on the history of the selection of federal judges presumes that there was some prior golden era in which national political leaders focused primarily on the merit of individual nominees and were not unduly swayed by partisan politics or ideology. Numerous constitutional scholars — and national leaders — have therefore roundly criticized the modern day judicial selection process, citing unprecedented delays and a low percentage of approval of federal court nominees as evidence that the system has broken down. They have argued that the ways in which senators, as well as presidents, have handled lower court nominations in the modern era have deviated from how the nation’s first chief executives and the first few Senates handled such nominations. Yet, there is one glaring omission in almost all commentaries on disputes over judicial selection over the past few decades — the absence of any substantiation of an earlier, so-called golden era, in which there actually was general deference within the Senate to presidents’ nominations to federal district and appellate judgeships. Even the classic work on federal judicial selection by the late Kermit Hall begins its analysis of federal judicial selection in 1825, disregarding nearly forty years of prior practices in the field and reinforcing the received but unsubstantiated assumptions about how judicial nominations to lower courts fared beforehand.
This Article is the first to make a serious comprehensive historiography of federal judicial selection from 1789-1861 in the United States. Following six years of archival and secondary source research, we identified each of the lower court nominations made by presidents from George Washington through James Buchanan and then tracked the Senate’s actions on each of their nominations through both archival and secondary sources. Further, we identified the criteria employed in the first seven decades of judicial nominations as well as the outcomes of, and grounds for, the Senate’s proceedings for all of these nominations. We believe that the results of this unprecedented study are significant because they provide a window into an era of early federal judicial selection that has been virtually ignored by both commentators and national political leaders. While we identified some antiquated practices, such as several of the earliest presidents’ judicial nominees actually declining judgeships after the Senate had confirmed their nominations, we found other patterns of practice that are similar to contemporary developments. Among the most significant of these latter patterns are the facts that: every antebellum president took political considerations into account in making nominations; all antebellum presidents, with the exception of William Henry Harrison, had most of their judicial nominations confirmed by the Senate; and three antebellum presidents — George Washington, Martin Van Buren, and James Polk — enjoyed 100% of their judicial nominations confirmed by the Senate. Yet, political parties, particularly in times of divided government, often split along party lines in judicial confirmation proceedings, and several judicial nominations in the antebellum period failed because of opposition based on the particular nominees’ ideologies or past political decisions. In short, there was no golden era of judicial nominations but rather different eras in which politics, in different ways, shaped federal judicial selection.