So You Want to be a Federal Appeals Court Judge?

The Legal Times recently broke the news that SDNY Judge (and my former Columbia Law School colleague and all-around good guy) Jerry Lynch noted in his response to the Senate Judiciary Committee questionnaire regarding his nomination to the 2nd Circuit that he did not seek out a promotion; rather, Sen. Schumer asked Lynch whether he was interested. I suppose that's news, although it hardly amounts to juicy gossip. There is something a bit off-putting about the customary practice as described in the LT story, whereby potential candidates for circuit clerkships are supposed to promote themselves to sponsoring Senators, and so Lynch scores a few points for modesty, but only a few: Surely he would have been on the short list for a 2nd Circuit vacancy in any event; he's one of the youngest Democratic appointees on the SDNY, with both prosecutorial and academic credentials from his pre-judicial career, and has presided over some high-profile cases.

Perhaps more newsworthy than which of Pres. Obama's initial batch of nominees asked to be considered for the job is the questionnaire itself. The file of Judge Lynch's questionnaire on the Legal Times website was corrupted (according to my computer) and in any event very large, but I'm less interested in the answers than in the questions, which I got from the Senate Judiciary Committee's website, posting the questionnaire reply of David Hamilton, currently a federal district judge in the Southern District of Indiana. President Obama has nominated Judge Hamilton to the 7th Circuit. Here I'll note a few observations:

1) The questionnaire is quite burdensome for any reasonably accomplished person---i.e., any likely nominee---to fill out. For no apparent reason, it asks for 4 copies of everything, including a text, transcript or notes of every speech ever given (or summaries if no notes were used). I suppose we should be glad that the Judiciary Committee is trying to save money on photocopying, but for nominees already holding judgeships, this simply transfers the costs of photocopying from one branch of the government to another.

2) More burdensome than the photocopying, of course, is the actual substance, including summaries of the 10 most important cases decided, 10 most important cases litigated, and much more. It seems unlikely that a federal district judge would actually write these summaries in the first instance anyway, so what the Judiciary Committee is really doing is offloading its research from its own staff to law clerks, or, in the case of private practice lawyers, associates. For academics, perhaps student research assistants? The same sorts of questions are asked of executive branch nominees, so we might ask Elena Kagan and Dawn Johnsen whether they had help filling out their questionnaires.

3) Whether or not nominees receive assistance from underlings in filling out their questionnaires, they will undoubtedly fill them out in a way that is designed to make themselves look good, which for confirmation purposes means: public-spirited, moderate, and bland. A district judge nominated for a circuit court judgeship who ruled, say, that the death penalty is cruel and unusual punishment in all cases, or that the Establishment Clause bars the recitation of the Pledge of Allegiance with the words "under God," couldn't hide such decisions as not making the top 10, but of course those Senators and interest groups likely to be troubled by such decisions would surely find them even absent the questionnaire. So what’s the point of asking the nominee to fill out the questionnaire?

4) Because both supporters and opponents of any particular nominee have easy access to Google, YouTube and WestLaw, it’s hard to imagine that the questionnaire is designed to call attention to matters the Judiciary Committee wouldn’t otherwise discover on its own. Rather, a better explanation is that it’s designed to make nominees themselves think twice. A prospective federal judge when asked to list all organizations of which he has ever been a member will realize that writing “NAMBLA” on the questionnaire will not only cost him the judgeship but will be more broadly humiliating, and will withdraw before things get out of hand.

5) That’s my best hypothesis anyway. Critics who want to say that the similar internal executive branch process didn’t work to screen out problems for Tim Geithner et al might want to reflect on what would have happened if, instead of having failed to pay some taxes, various of the President’s nominees had given speeches praising Hitler. Or, on second thought, maybe even that wouldn’t matter if the nominee were otherwise acceptable.

Posted by Mike Dorf