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FEDERAL JUDICIAL NOMINEES SHOULD HAVE
NOTHING TO HIDE

Professor William G. Ross
University of Notre Dame Law School
Editor, JURIST Forum

The rigor of the federal judicial appointments process was diminished last month when Republicans persuaded the Senate Judiciary Committee to refrain from questioning nominees about illegal drug activities and political campaign contributions, and to curtail the scope of questions about criminal records.

After regaining control of the Senate last summer, Senate Democrats added the question about drugs to a confidential questionnaire sent to all federal judicial nominees. The questionnaire, which is not released to the public, continues to require nominees to reveal information concerning tax audits or tax liens, bankruptcy, complaints for violation of professional ethics, and discharges from employment.

The short-lived revisions to the confidential questionnaire, promulgated by Senator Patrick J. Leahy of Vermont on September 17, asked nominees for information about 菟rior use, possession, purchase or distribution of any illegal substance. As Leahy suggested when he introduced this question, the omission of any reference to drugs on the old form was anomalous since federal judges preside over federal criminal proceedings involving illegal drug activity.

As revised in September, a non-confidential questionnaire that is sent to all nominees added a now-deleted question calling for itemized list of contributions to political campaigns and political parties during the past ten years. As revised in its present form in the wake of Republican protests, the questionnaire retains a question about whether the nominee ever has 塗eld a position or played a role in a political campaign and asks the nominee to provide detailed information about such political involvement. This question about political activity already had been included in the questionnaire even before the September 2001 revisions.

The September revisions also added a question to the public questionnaire requiring nominees to identify and discuss the details of any conviction for a crime, within twenty years of his or her nomination, other than a minor traffic violation, that is reflected in a record available to the public. Although this question has been retained in its basic form, Republicans persuaded the Committee to reduce the time limitation to ten years.

These changes are unfortunate. There are numerous reasons why the Senate should require nominees to divulge information about drug activity, criminal convictions, and campaign contributions.

Since so many federal judges preside over drug-offense prosecutions or hear appeals of drug convictions, prior drug use by a judge is relevant in several respects. A judge who himself has broken drug laws may be morally unfit to pass judgment on others who have violated the same laws. Moreover, prior drug use by a judge might make the judge more lenient in enforcing the laws than many senators might prefer. Indeed, it is ironic that Republicans, who have been particularly vociferous in calling for stricter enforcement of drug laws, insisted upon the deletion of the question concerning drug use. A history of drug offenses also might suggest that the nominee continues to have a drug problem, which could interfere with the performance of his or her duties on the bench.

Similarly, senators need to know as much as possible about any other aspect of the criminal history of any person who is nominated to serve as a federal judge. The new question about criminal convictions therefore significantly improves the public questionnaire. Rather than reducing the time limitation from twenty years to ten years, however, the Judiciary Committee ought to have removed any temporal limitation period at all. Since the integrity of the judicial process requires only that persons of the highest moral character sit on the federal bench, senators should assure themselves and the public that nominees have lived their lives in conformity with the law that they will be charged with upholding if they are confirmed. Any criminal conviction at any time therefore casts a pall over the nominee痴 integrity. Although a criminal conviction does not necessarily need to disqualify a nominee, it surely raises questions that the Senate needs to address. The questionnaire痴 apparent presumption that crimes that were committed more than ten years ago are somehow not worthy of the Senate痴 notice demeans the integrity of the judicial appointments process and cheapens the federal bench.

Critics of the questions about drug use and criminal convictions alleged that these questions would slow down the confirmation process at a time when a record thirteen percent of federal judgeships are vacant. This argument appears bogus insofar as one would surely hope that very few nominees have been convicted of serious crimes or engaged in significant drug offenses. Even if the questions retarded the nomination process, however, this would be a small price to pay for helping to ensure the integrity of the nation痴 federal judges.

Opponents of the September revisions also argued that the questions about drug offenses and criminal convictions were redundant because the FBI already reveals information about criminal activity to the Senate in confidential report. Opponents of the question also argued that Senate staff members were likely to leak the confidential answers to the drug question, thereby embarrassing nominees. In contrast, FBI reports are more secure because senators generally do not share them with their staff.

Although these arguments do not lack merit, they are not compelling enough to justify the deletion of the questions. The questions might have elicited information unknown even to the FBI. Moreover, FBI reports are available only to the nineteen members of the Judiciary Committee and not to the other eighty-one members of the Senate not even to the nominee痴 home state senators who recommended their nomination if such senators are not members of the Committee. Senators who are not Committee members have access to the information only through the filter of Committee staff members. And, even if the information were leaked to the public, the public has a right to know if judicial nominees have been involved in illegal drug activity.

Furthermore, the now-deleted questions helped to enhance the fairness of the process for the nominee since they provided an opportunity for the nominee to explain extenuating circumstances concerning drug use or criminal convictions in a manner that might mitigate the impact of the FBI痴 report of these activities.

The withdrawal of the question about campaign contributions likewise is unfortunate since the Senate and the public have a right to know the extent to which federal judgeships may be rewards for such political largesse. Indeed, Alexander Hamilton in Number 76 of The Federalist indicated that amelioration of the personal favoritism of Presidents would be one of the Senate痴 principal roles in the confirmation process.

Although critics of the campaign contribution query contended that campaign contributions are irrelevant if a candidate is otherwise qualified for a judgeship, this argument overlooks the fact that there are degrees of qualification and that political contributions may result in the nomination of a well qualified candidate rather than an even better qualified candidate. While it is unrealistic to expect to banish all political favoritism from the judicial appointments process, and there may be sound reasons why partisan loyalty is a legitimate factor in this process, the degree to which favoritism may be a factor should be apparent for all to see.

While much information about campaign contributions is available from other sources, the confirmation process would be further slowed if the Judiciary Committee had to take the considerable time necessary to compile the data from those sources. Moreover, the inclusion of such information on the questionnaire itself is more likely to make the public aware of the possible role that contributions play in the judicial selection process.

The reasonableness of questions about campaign contributions is demonstrated by the fact that many other Senate committees, including the committees on Armed Services, Banking, Foreign Relations, and Government Affairs, require nominees for federal jobs to itemize campaign contributions.

Thus far, Bush does not appear to be using judgeships as a means of rewarding large contributors. While a survey several months ago indicated that nearly half of Bush痴 judicial nominees had contributed to G.O.P. causes, the largest contributor had given less than twenty thousand dollars over a nine-year period merely a mite in today痴 political world. Campaign contributions may have played a part in some nominations in earlier administrations, however, and the reporting of such contributions on the questionnaire would help to discourage any such abuses in the future.

While the confidential questionnaire still invites judicial nominees to provide 殿ny unfavorable information that may affect your nomination, many nominees may not interpret this flaccid language as a command to discuss drug offenses, much less campaign contributions. Some nominees, however, have indeed reported information about drugs, crimes, and campaign contributions in response to this question. The use of this vague question as a substitute for more specific queries therefore places conscientious nominees at a disadvantage and rewards those who are less candid.

In opposing the changes to the questions that Senator Leahy promulgated on September 17, Republicans also alleged that disclosure of drug offenses, criminal convictions, and campaign contributions would scare away worthy candidates for federal judgeships. This is are strange arguments since one would suppose that most persons who have been convicted of crimes or have significant drug histories would be presumed unfit for the federal bench and that Republicans and all Americans would welcome the opportunity to eliminate them from the selection process or at least have an opportunity to more carefully scrutinize their moral character. Moreover, this nation is in serious trouble if the President cannot find plenty of well qualified judicial nominees without scouting for ex-convicts and drug abusers.

Some Republicans also have contended that the questions violate personal privacy. But a person who is hoping to obtain a powerful position that carries lifetime tenure must expect to sacrifice some privacy since he or she is seeking a very public position in which at least some aspects of his or her personal life are highly relevant.

Since federal judges exercise such substantial power over both individual disputes and broad public policy, the Senate has a duty to minutely examine every judicial nomination in order to try to ensure that only persons of the highest personal character and professional ability sit on the federal bench. The deletion of the questions proposed by Senator Leahy in September will impede the Senate痴 ability to assess these critical qualifications.


William G. Ross, a professor at the Cumberland School of Law of Samford University, is currently a visiting professor at the University of Notre Dame Law School.

December 19, 2001

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EDITOR

JURIST Forum Editor William G. Ross is a professor at the Cumberland School of Law of Samford University, and visiting professor at University of Notre Dame Law School for 2001-02. Professor Ross practiced law in New York City for nine years before joining the Cumberland faculty in 1988. He is the author of two books about American constitutional history and a book about the ethics of time-based billing by attorneys. His numerous law review articles concern ethics, legal history, and the federal appointments process. Professor Ross graduated from Stanford in 1976 and the Harvard Law School in 1979.