Federal judges: the appointing process

257 Pages·1972·12.36 MB·English

by  Harold William Chase

FEDERAL
JUDGES
The
Appointing
Process
P
ublished with assistance from the
John K. Fesler Memorial Fund to
promote greater understanding of law,
business, and public affairs,
a cause to which John K. Fesler
was deeply committed.
FEDERAL
JUDGES
The
Appointing
Process
HAROLD W CHASE
UNIVERSITY OF MINNESOTA PRESS Minneapolis
© Copyright 1972 by the University of Minnesota.
All rights reserved. Printed in the
United States of America at the University
of Minnesota Printing Department, Minneapolis.
Published in the United Kingdom and India
by the Oxford University Press, London
and Delhi, and in Canada by the Copp Clark
Publishing Co. Limited, Toronto
Library of Congress Catalog Card Number: 72-189381
ISBN 0-8166-0647-1
To GEORGE A. GRAHAM
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Preface
THE IDEA for this study of how federal judges are appointed was
George A. Graham's. He was at that time (1961) director of govern-
mental studies at the Brookings Institution. He was impressed by the
fact that, despite the importance of these posts in the American
system of governance, little scholarly attention had been given to the
matter of who gets the posts and how. Since that time, several scholars
whose works are cited in the chapters to follow have done much to
remedy that situation and it is hoped that this work added to theirs
will provide a good and accurate picture and evaluation of the ap-
pointment process.
There is likely to be some confusion when one writes or speaks
about "federal judges." Technically, every judge who operates in the
federal system (as opposed to a state system) is a federal judge. But
there are significant differences among the various federal courts and
justices. One such difference is most helpful in categorizing them.
Some of our federal courts are Article III courts, which means that
they have been constituted by Congress in accordance with the pro-
visions of Article III of the Constitution. Judges in these courts serve,
in the words of Article III, "during good behavior," i.e., for life unless
they choose to resign voluntarily. Other courts like the territorial
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FEDERAL JUDGES
courts, certain courts in the District of Columbia, the Tax Court, and
the United States Court of Military Appeals have been set up by
Congress in consequence of Congress's power to do what is "neces-
sary and proper" to execute its enumerated powers under Article I,
section 8, of the Constitution. Judges in these courts have fixed terms.
For example, judges in the territorial courts are appointed for eight
years except in Puerto Rico where by special provision judges hold
their offices "during good behavior."
In this study, George Graham and I decided in the beginning that
I would deal only with the judges who are appointed for life terms.
Specifically, this means the judges of the following courts:
The United States Courts of Appeals. These courts are the inter-
mediate appellate courts, created in 1891 to relieve the Supreme
Court from considering all appeals in cases originally decided by the
federal trial courts. Their decisions are subject to discretionary review
or appeal in the Supreme Court. There are eleven such courts of ap-
peals, including one for the District of Columbia. Each state and ter-
ritory is assigned to a circuit. The judges on these courts receive a
salary of $42,500 a year.
The United States District Courts. These are the trial courts of
general federal jurisdiction. Each state has at least one such court, as
do the District of Columbia and the Commonwealth of Puerto Rico.
There are ninety-one district courts. (This figure does not include the
district courts for the Canal Zone, Guam, and the Virgin Islands which
are regarded as "legislative" courts and whose judges have only
an eight-year term.) District judges are paid $40,000 a year.
The United States Court of Claims. Basically, this court, estab-
lished in 1855, has original jurisdiction to render judgment on any
claim against the United States based upon the Constitution, con-
gressional acts, regulations of the executive agencies, or contracts
with the United States. The full panoply of its jurisdiction is set forth
in the U.S. Code Title 28, 1491-1506. The judges on this court re-
ceive $42,500 a year.
The United States Court of Customs and Patent Appeals. This
court, established in 1909, decides questions arising under the customs
laws. Since 1929, it has had jurisdiction to review certain patent and
trademark cases. It also reviews some of the decisions of the Customs
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PREFACE
Court. The judges receive the same compensation as those on the
Claims Court.
The United States Customs Court. This court, an outgrowth of
the Board of United States Appraisers, and established as a court in
1926, has exclusive jurisdiction over civil actions under the tariff laws
and internal revenue laws relating to imported merchandise, as well
as other important functions. The judges on this court are paid $40,000
a year.
It is difficult to fix on the precise number of positions on the ap-
peals and district courts at any time, for they are constantly being ex-
panded. There were substantial increases in the number of judgeships
on these courts in 1961, 1966, and 1970. Adding to the difficulty of
giving precise figures is the practice Congress follows of establishing
from time to time a new judgeship with the proviso that "the first va-
cancy occurring in the office of district judge in said district shall not
be filled." The reason for doing this is to ease court congestion where
a heavy case load does not appear to be a permanent problem or
where a sitting judge is suffering a disability but will not retire, the
thought being that there is not a long-range need for two posts—and
that time will take care of the situation. In the judgeship bill of 1966,
out of thirty-five new district judgeships, five were designated as
judgeships which would terminate with the first vacancy; in 1970,
three out of sixty-one new judgeships were so designated. In any
event, as of this writing the number of federal judicial posts is as
shown in the tabulation.
Court No.
Courts of appeals 97
District courts 397
Court of Claims 7
Court of Customs and
Patent Appeals 5
Customs Court 9
Total ~5l5
It seemed clear to George Graham and me from the outset that to
do a thorough study of the kind we envisioned it would be necessary
to obtain Department of Justice cooperation. First, we wanted access
to records pertaining to appointments. Second, we felt that, since we
were starting at a time when a whole host of new appointments would
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