Inexperienced people can be appointed to the federal bench. It happens because federal law does not require legal or judicial experience to become a federal judge.
Federal judges are lifelong appointments for the most part. Bankruptcy and Magistrate Judges are exceptions to this general rule. Magistrate judges are federal judicial officers appointed by the district judges. They handle a variety of judicial proceedings including issuing warrants and hearings on preliminary criminal and civil motions.
A sitting president appoints a judge subject to the Senate’s confirmation. Judges on the federal bench are Article III judges. Article III judges include Supreme Court justices and federal and circuit court judges. Once confirmed, an Article III judge must be impeached by the house of representatives and convicted by the senate to be removed.
Some people appointed and confirmed have had little or no actual courtroom experience. Some have lacked a law degree. Necessary qualifications seem ephemeral to the layperson.
Federal Judge Qualifications
The U.S. Constitution provides the framework for how to confirm an appointment. It is silent on the qualifications needed for a judge to be appointed and confirmed. Most notably, a judge does not even have to have a law degree under the Constitution unless that judge is appointed as a bankruptcy or magistrate judge.
In lieu of a standardized list of qualifications, senators have come to rely on other guidance. One of these is the American Bar Association (ABA) rating. The ABA’s Standing Committee has been rating candidates as “well qualified,” “qualified,” or “unqualified” since 1953. In making that determination, the ABA looks at a candidate’s professional qualifications:
- Integrity
Professional competence, and - Judicial temperament.
In looking at the issue of integrity, the Committee looks at the candidate’s character and reputation in the legal community, as well the candidate’s general work ethic.
In looking at competence, the Committee looks at the candidate’s legal record, their written opinions, legal knowledge, and depth and breadth of legal experience. The last criterion, that of judicial temperament pertains to issues of compassion, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law.
Recently Appointed Federal Judges
The ABA has continued to issue its rating for each judge, though in this highly polarized political climate, it appears to carry less weight.
Nonetheless, Brett Talley, a recent Trump appointee to the U.S. District County for the Middle District of Alabama, who received a unanimous “not qualified” rating by the ABA in 2017, withdrew his nomination. Whether this was because of the rating or because of other political conflicts, is a matter of debate.
Nor is it necessary that a candidate has tried a case in a court of law to be nominated and seated on the federal bench. An Obama appointee, Nancy Freudenthal, had never tried a case before being confirmed 96 to 1 as a judge for the U.S. District Court for Wyoming. She had, however, worked extensively on energy and environmental issues first as an associate and then as a partner in a Wyoming law firm.
Typical Jobs Leading to the Federal Bench
Whether looking toward a district court vacancy or a supreme court vacancy, many potential federal judges’ career paths share similarities and differences. All study at a reputable law school, though a law degree is not absolutely required. Many study at either Harvard or Yale. Clerking for another judge is often on the list of jobs that help to qualify a candidate. Clerking allows a person to observe trials and to research and draft opinions.
Some work in private practice, litigating or not. Others choose to work as a U.S. District Attorney to gain legal experience. Legal and personal skills, especially communication skills are considered to be important for federal judges.
Objectivity is a trait that a potential judge can build over time before nomination to the federal bench. The ability to see both sides of an issue and to represent and empathize with both sides helps prepare a candidate for the bench. Other judges feel that their prior experience as litigators was crucial to prepare them for sitting on the bench.
Moving from allegiances to clients to allegiance to the rule of law is cited by many as a pivotal career moment. In looking back on their career paths, federal judges recommend working at jobs and activities that develop a person’s reputation for integrity and skill. They also recommend becoming active in committees and other bar association activities that help put a person in touch with judges and that will allow them to see the inner workings of courts.
The Politics of the Situation
As politics plays an ever-increasing role in the nomination and confirmation of members of the federal bench, the objectivity of the bench is increasingly under scrutiny. If the bench is seen as purely partisan, the legitimacy of justice will have failed. And yet, politics, from getting to know other judges to becoming known as a legal professional, is rife with political actions and ambitions.
Traversing this terrain with integrity is becoming increasingly difficult and increasingly important. Numerous career paths can take a potential candidate toward a federal bench nomination. It is important that whatever path takes you there, that it does so with honor, integrity, a dedication to the rule of law, and an understanding that the law affects people, every day.