The Path to the Federal Bench

NCAI’s Project on the Judiciary recently partnered with several progressive organizations and minority bar associations to create a new how-to guide on pursuing federal judgeships, “The Path to the Federal Bench.”  The guide includes detailed information on the application and invasive vetting processes that lie ahead for potential federal judges, as well as the confirmation process and what to expect from a Senate Judiciary Committee hearing.  Additionally, and in keeping with the guide’s overall goal of increasing diversity on the federal bench, the guide contains a section that spotlights a handful of current and former federal judges with exceptionally diverse backgrounds.  Included in this list is Judge Billy Michael Burrage, one of only two Native Americans ever to be appointed to the federal judiciary.  For an electronic version of the judge guide, click here.

The Nominations Process: A Brief Overview

  • U.S. Constitution, Artitcle II, Section 2 requires all Article III judicial appointments be made by the President with the “advice and consent” of the Senate
  • Generally, the President nominates eligible individuals to fill judicial vacancies.  Next, the Senate must approve all nominees before they are appointed to the bench.  Once appointed, federal judges serve for life unless they resign or are removed through the impeachment process.

In practice, there is a long tradition of cooperation between the President and the Senators from the state where the vacancy is located to select nominees when a vacancy occurs.  In some states, a bi-partisan commission or other formal process has been created to make recommendations to the President if a vacancy occurs.  The following is a general step-by-step outline of how the process usually operates.

  1. When there is a judicial opening, the President nominates someone to the position.  Usually he discusses the nomination with key Senators before announcing his choice.
  2. The nomination is sent to the Senate Judiciary Committee (SJC).
  3. The SJC compiles information about the nominee (e.g., an FBI background check) and reviews the nominee’s record and credentials.
  4. The SJC holds a hearing on the nominee, where witnesses are invited to speak both in favor and against the nomination.  Senators are permitted to question the nominee.
  5. The SJC votes on the nomination and then makes a recommendation to the full Senate that the nominee either be confirmed, rejected, or that they do not have a recommendation (sometimes this process results in nominees failing to reach the Senate at all).
  6. The full Senate debates the nomination.
  7. A vote of 3/5 of the Senate (60 senators) is required to end debate.  This is called a cloture vote (if enough senators wish to delay a vote on a nominee, they can filibuster by not voting to end debate).
  8. When debate ends, the Senate votes on the nomination.  Confirmation requires a simple majority of the senators present and voting.

As can be discerned from the lengthy procedure, a nominee has many hurdles to clear before a confirmation occurs.  Not only must nominees build stellar careers establishing themselves as qualified individuals, but they must also exhibit exemplary character and fitness to serve.  In addition, nominees must be prepared to address issues about their character, or career record, which might be construed as hampering their ability to perform the duties of a judgeship.

Additional Resources:

For a better understanding of the current landscape of the federal judiciary, the following informational links have been provided:

Federal Judicial Vacancies

List of current Federal Judicial vacancies with current nominations for replacement

Federal Judicial Nominations Database

List of attorneys/judges who have been nominated and/or confirmed for a seat on the federal bench

The Third Branch: Newsletter of the Federal Courts

Monthly newsletter of the federal judiciary, lists judicial “milestones” which include judicial status changes and newly appointed judges