Judges Judging Judicial Candidates: Should Currently Serving Judges Participate in Commissions to Screen and Recommend Article III Candidates Below the Supreme Court Level?

In the lead-up to the 2008 presidential election, the American Bar Association (ABA), among others, called upon the next president to reform the federal judicial selection process by using bipartisan commissions to screen and recommend Article III candidates for presidential nomination and Senate confirmation below the Supreme Court level. This proposal may well find support in the Obama administration, given the new president’s emphasis on bipartisan consensus-building and transparency of government operations. This Article addresses one question that the ABA and others have not: Should currently serving judges participate in bi-partisan commissions to screen and recommend Article III candidates below the Supreme Court level, just as judges commonly do for state court, other federal court, and other nations’ court appointments? This Article answers “no.” Judges should not serve on Article III screening commissions because the harms of doing so outweigh any potential benefits. More specifically, judicial service on Article III screening commissions raises concerns principally for: (1) undue accretion of power by judges and attendant threats to judicial integrity and impartiality; and (2) negative impacts on bench diversity. These concerns are explored in the discussion that follows