Should sitting judges — especially the controversial James Boasberg and Tanya Chutkan — be able to tell the president what other judges he can appoint? Of course not. But under the current system for selecting D.C.’s local judges, that’s exactly what happens.
It’s bad enough that those challenging Trump administration policies have sought to bring their cases before D.C. federal judges like those mentioned above, who they believe will be inclined to rule against the administration — especially on hot button issues like abortion, immigration, government spending, and trans-identifying individuals in the military, just to name a few. But what’s worse is that those same judges have been empowered to help select other judges who are likely to have the same radically different (and sometimes dangerous) view of their judicial role — regardless of the wishes of the sitting president.
Here’s the backstory: For most of our nation’s history, the president appointed District of Columbia judges via the familiar system outlined in the Constitution. When a vacancy occurred, the president would nominate a replacement and appoint that person once confirmed by the Senate.
But starting in 1973 (and slightly before), with the advent of D.C.’s “Home Rule,” Congress radically altered not only the structure and jurisdiction of the district’s courts but also the method by which their judges were selected. Congress ostensibly enacted these “reforms” to give local leaders a greater say in who sat on D.C.’s newly created courts and to make the process “nonpartisan” and “apolitical.”
But we know that selecting judges is an inherently political exercise. And in practice, any impartial observer would have to admit that the current system has loaded the dice to make it impossible for any constitutionally conservative judge to make it onto the bench.
In a constitutionally questionable move, Congress stripped the president of the ability to nominate his preferred candidate to take the bench. And instead, Congress created a system where anyone who wants to serve as a judge on D.C.’s “local” courts must first apply to a statutorily mandated “Judicial Nominating Commission.”
The JNC is comprised of seven members, one of whom the president selects, while D.C.’s mayor and D.C.’s bar (itself an organ of D.C.’s local courts) each select two members. D.C.’s council selects one member too.
Even more bizarrely, the chief judge of the district’s “federal” court appoints a sitting federal judge “serving in the District” to serve as the final member of the JNC.
This means that these judges are selecting other judges! Of the applicants it reviews, the JNC must select three candidates to fill each vacancy and then forward those candidates’ names to the president.
But here’s where things get even crazier: If the president refuses to nominate one of the three JNC-recommended individuals within 60 days of receiving their names, then the JNC itself can pick someone, nominate that person, and appoint (after Senate confirmation) that person to serve on the court.
No wonder D.C. Circuit Court Judge Laurence Silberman (with agreement by D.C. Circuit Court Judge Greg Katsas) questioned the propriety of sitting federal judges essentially picking other judges. It’s inherently political and an ethical quagmire. Moreover, it’s forbidden by judicial ethics in other similar circumstances: For instance, federal judges cannot serve on a state’s JNC to help select that state’s judges because of the inherently political nature of that activity. And the same is true here.
Though other judges have so far declined to recommend disciplinary action against the individual federal judge selected to serve on D.C.’s JNC, the selection system is clearly flawed — a fact seen in the dynamic among the current political players involved in the process (never mind that judges aren’t supposed to be political players).
Take, for instance, the fact that under the present system, Chief Judge James Boasberg gets to appoint the D.C. federal judge to sit on the JNC. And Judge Tanya Chutkan, in fact, currently fills that role.
President Trump has previously criticized both of those judges, and both have ruled against his administration for various actions. Chutkan even presided over one of the cases Special Counsel Jack Smith brought against Trump. As if that weren’t enough, then-President Barack Obama, one of Trump’s political and ideological opponents, appointed both to their current positions.
Should these judges really get to tell the current president what other judges he can appoint? Hardly. But under the current system, they can and do.
This problematic appointment system raises serious questions (among others) about whether it impinges on the president’s Article II appointment power.
But even setting aside the constitutional concerns, the current system isn’t working well as a practical matter.
Unease about the system has slowed the confirmation process. This reality has left two vacancies on D.C.’s highest appellate court and twelve vacancies on D.C.’s trial court. By all accounts, the courts could use the help of these additional judges to move through the backlog of existing cases and the additional cases — often involving those accused of committing violent crimes — that will be brought.
Fixing the broken D.C. judicial appointment process is straightforward: Replace it with the process that already exists for nominating, confirming, and appointing every Article III federal judge. The president — and the president alone — should get to select his preferred nominees.
Zack Smith is a senior legal fellow and manager of the Supreme Court and Appellate Advocacy Program in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.
