Tobias, Carl

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Florida State University College of Law

Florida State University Law ReviewVolume 24 | Issue 1 Article 41996President Clinton and the Federal JudiciaryCarl Tobias1@1.comFollow this and additional works at: http://ir.law.fsu.edu/lrPart of the Law CommonsThis Essay is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University LawReview by an authorized administrator of Scholarship Repository. For more information, please contact bkaplan@law.fsu.edu.Recommended CitationCarl Tobias, President Clinton and the Federal Judiciary, 24 Fla. St. U. L. Rev. 121 (1996) .http://ir.law.fsu.edu/lr/vol24/iss1/4FLORIDA STATE UNIVERSITY LAW REVIEW    PRESIDENT CLINTON AND THE FEDERAL JUDICIARY  Carl Tobias            VOLUME 24             FALL 1996             NUMBER 1 Recommended citation: Carl Tobias, Essay, President Clinton and the Federal Judiciary, 24 FLA. ST. U. L. REV. 121 (1996).  121PRESIDENT CLINTON AND THE FEDERALJUDICIARYCARL TOBIAS*Four years ago, I examined the crucial duty to appoint federaljudges that the Constitution imposes upon the President of theUnited States.1 I observed that the Chief Executive nominatesand, with the Senate's advice and consent, appoints these officerswho serve for life and resolve controversies that involve Ameri-cans' most essential liberties. Because 1992 was an election year,I assessed the judicial selection record that President GeorgeBush had compiled during his four years in office.I found that the Bush Administration had named 182 lawyersto the federal bench. Nearly nineteen percent of those appointeeswere women and five and one-half percent were African-Americans. I observed that President Bush's judicial selection re-cord surpassed that of President Ronald Reagan and was compa-rable to the record of President Jimmy Carter. I admonished thatthere was considerably more to choosing judges than simplycounting the percentages of women and minorities named. Forinstance, some evidence indicated that the Bush Administration'sfemale and minority appointees had political and philosophicalviewpoints and judicial temperaments that closely resembledthose of the judges whom they joined on the federal bench.Now that another presidential election year has commenced, itis important to evaluate the record of choosing judges that Presi-dent Bill Clinton has compiled. Moreover, the Clinton Admini-stration's judicial selection record can be profitably comparedwith the campaign promises regarding judicial selection thatCandidate Clinton made when he was running for the presidencyand with the records of his predecessors.Four years ago, the Democratic nominee pledged to namewomen and men who were highly intelligent, had balanced judi-cial temperament, and were committed to protecting individualrights in the Constitution while increasing gender and racial di-versity on the bench.2 During President Clinton's initial three                                                                                                             * Professor of Law, University of Montana. B.A., 1968, Duke University; LL.B.,1972, University of Virginia.1. See Carl Tobias, The President and the Federal Bench, 1992 WIS. L. REV. 1329.2. See, e.g., Bill Clinton, Judiciary Suffers Racial, Sexual Lack of Balance, NAT’LL.J., Nov. 2, 1992, at 15-16; Bush v. Clinton: The Candidates on Legal Issues, A.B.A. J.,Oct. 1992, at 57-58; see also Stephen Labaton, Clinton May Use Diversity Pledge to RemakeCourts, N.Y. TIMES, Mar. 8, 1993, at A1.122 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 24:121years in office, he has appointed 182 lawyers to the federalcourts. Fifty-seven (thirty-one percent) of those judges are womenand fifty-two (twenty-nine percent) are minorities.3President Clinton's appointees have compiled the highestrankings for excellence by the American Bar Association since theABA began rating candidates' qualifications more than four dec-ades ago.4 Nearly all of the appointees appeared to be extremelycompetent and to possess the requisite independence, intelligence,industriousness, and balanced judicial temperament that are criti-cal to excellent service on the bench. For example, Judge GuidoCalabresi served as Dean of the Yale Law School before his ap-pointment to the Second Circuit, while Judge Diane Wood servedas Deputy Assistant Attorney General in the Antitrust Division ofthe Justice Department before being named to the Seventh Circuit.A significant percentage of the appointees had previouslyserved as judicial officers either in the federal or state systems.For instance, Judge Pierre Leval was widely regarded as one ofthe preeminent federal district court judges before his elevationto the Second Circuit, while Judge Martha Daughtrey servedwith distinction on the Tennessee state courts before her ap-pointment to the Sixth Circuit.Competence seems to be the hallmark of the vast majority ofjudges whom President Clinton has named. Indeed, some observ-ers have criticized the Chief Executive for failing to appoint at-torneys whom they perceived to be more politically partisan, par-ticularly as a counterbalance to the express intent of PresidentsReagan and Bush to make the courts more conservative by nam-ing lawyers with explicit doctrinaire views.5President Clinton has kept his campaign promise to namehighly qualified jurists to the federal bench, although his ap-                                                                                                             3. See Carl Tobias, Filling the Federal Courts in an Election Year, 49 SMU L. REV.309, 314 (1996); Carl Tobias, Increasing Balance on the Federal Bench, 32 HOUS. L. REV.137, 145 (1995); Carl Tobias, Keeping the Covenant on the Federal Courts, 47 SMU L. REV.1861, 1866 (1994); see also Telephone Interview with Deborah Lewis, Alliance for Justice,Washington, D.C. (Mar. 7, 1995).4. See Henry J. Reske, Judicial Vacancies Declining, A.B.A. J., Jan. 1994, at 24;DEPARTMENT OF JUSTICE, CLINTON ADMINISTRATION JUDICIAL RECORD, ANALYSIS OFJUDICIAL NOMINATIONS (1994) (copy on file with author).5.  See, e.g., Ted Gest, Disorder in the Courts? Left and Right Both Gripe About Clin-ton’s Taste in Judges, U.S. NEWS & WORLD REP., Feb. 12, 1996, at 40; Joan Biskupic, Clin-ton Avoids Activists in Judicial Selections, WASH. POST, Oct. 24, 1995, at A1; see also Shel-don Goldman, Reagan’s Judicial Appointments at Mid-Term: Shaping the Bench in HisOwn Image, 66 JUDICATURE 335, 337 (1982) (affording Reagan intent); Neil A. Lewis, BushPicking the Kind of Judges Reagan Favored, N.Y. TIMES, Apr. 10, 1990, at A1 (affordingBush intent). See generally Sheldon Goldman, Judicial Selection Under Clinton: A Mid-term Examination, 78 JUDICATURE 276 (1995).1996]                    FEDERAL JUDICIARY 123pointees have been judges for an insufficient period to ascertainexactly what type of judicial service they will ultimately render.The Clinton Administration has implemented a systematic, ef-fective process for selecting nominees who have earned the high-est ratings ever assigned by the ABA. The Chief Executive hasdramatically enhanced gender and racial diversity on the federalcourts and has apparently increased political balance. Whenmembers of the American public cast their votes for president inNovember, voters should remember the critical responsibilitythat presidents have for selecting Article III Judges.

President Clinton and the Federal Judiciary

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President Clinton and the Federal Judiciary

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