Nominations, Confirmations, and Departures of Federal Judges 7 The Facts: During Donald Trump’s presidency, critics of his federal judicial appointments took aim at what they described as his outsourcing of the nomination process to the conservative Federalist Society (Sher- man, Freking, and Daly 2020). Defenders of Trump’s nominations, while often taking issue with the charge that his selection process had been outsourced, generally have not denied the sizable influence of the Feder- alist Society. For example, law professor Steven Calabrisi, co-founder of the Federalist Society and co-chair of its board of directors, acknowledged that the organization “has become a clearinghouse of sorts for candidates” (Wheeler 2017). At a Federalist Society gala in 2017, White House Coun- sel Donald McGahn, who played a leading role in identifying and vetting prospective nominees for Trump, “joked that it was ‘completely false’ that the White House had ‘outsourced’ picking federal judges. . . . There was no need, he said: ‘I’ve been a member of the Federalist Society since law school—still am. So frankly, it seems like it’s been in-sourced’” (Fredrick- son and Segall 2020). At the following year’s Federalist Society gala, Orrin Hatch, former Republican Senator from Utah, offered this retort to the outsourcing claim: “Some have accused President Trump of outsourcing his judicial selection process to the Federalist Society. I say, ‘Damn right!’” (Fredrickson and Segall 2020). Whether or not it is accurate to characterize Trump’s nominations as “outsourcing,” there is no disagreement that since the 1980s the nonprofit Federalist Society has taken on an increasingly important role in identify- ing and influencing the selection of conservative candidates for the federal bench. There is also no disagreement that the ABA—a professional orga- nization of lawyers with some 400,000 members—has played a substantial role in the process since the 1950s, though recent Republican adminis- trations have diminished that role. The ABA and the Federalist Society plainly exemplify that federal judicial nominations are shaped not only by the president, the executive branch, the Senate, and other government officials, but also by outside organizations. As noted in Q1, the Constitution provides little guidance on the process of nominating federal judges beyond specifying that the president shall, “by and with the Advice and Consent of the Senate,” appoint Supreme Court judges and all other officers of the United States (Article II, section 2). Though the president has the sole authority to name candidates to fill vacant seats on the federal bench, other government officials assist in the process of compiling lists of prospective judges, evaluating possible nomi- nees, and whittling down the pool of candidates. Within the executive branch, presidents often rely on guidance from the White House counsel, various White House aides, the attorney general, and other Department of
Previous Page Next Page