Jill Kolodner | January 31, 2022 | Personal Injury
While it may seem hard to believe, the United States Constitution does not set forth specific requirements regarding who can be named to a federal bench in Maryland.
A federal judge includes a range of judges, including justices of the Supreme Court and judges in the U.S. Courts of Appeals and U.S. District Courts.
All of the individuals in these positions are nominated by U.S. Presidents and must be confirmed by the Senate. Federal judges are appointed for lifetime terms. What is perhaps most shocking is that these federal judges are not technically required to have a degree in law.
United State Bankruptcy Court judges and federal Magistrates are the only federal judges selected by a different process, plus they are not appointed for life.
Examination of Federal Judge Candidates
While no specific legal requirements exist when appointing federal judges, informal criteria have been established in the process. Potential nominees to the bench are usually recommended by elected members of the U.S. House and Senate from the political party currently in the White House.
Candidates for federal judges are subject to a thorough background check conducted by FBI and Department of Justice staff. Candidates with judicial experience can expect to have their past opinions and judicial actions scrutinzed. Former litigators can expect their tactics and past performance closely examined.
If the candidate has published any writings, including college papers, they can expect those papers to be reviewed. The candidate’s views on specific issues will also be subject to a high level of scrutiny, along with their social media and online presence.
Candidates are also reviewed by the American Bar Association (ABA), which has a committee dedicated to federal judiciary review that looks at each candidate and, based on experience, integrity, temperament, and competence, rates them as “well qualified,” “qualified,” or “not qualified.”
An ABA endorsement isn’t required for a confirmation to the bench, but it may help to garner more votes during the confirmation process.
Experience Matters: Recent Nominations to the Federal Bench
While certain credentials may not be required, the nomination and vetting process typically demands that a candidate have legal experience.
President Donald Trump nominated 36-year-old attorney Brett Talley as a district judge in Alabama. While Mr. Talley had graduated with a law degree from Harvard and worked as deputy assistant A.G. in the U.S. Justice Department, the man had actually never tried a case. He also had never argued any motion in a federal court. At the time of his nomination, the ABA had only unanimously rated as “not qualified” two other nominees since 1989. Trump’s administration eventually withdrew the nomination.
Another one of Trump’s federal nominees, Matthew Petersen, withdrew his nomination for consideation as a U.S. District Court Judge in D.C. following criticism of poor performance while participating in his confirmation hearings.
During his confirmation hearings, which ultimately went viral, the candidate could not answer basic questions related to law. Petersen also admitted that he had no experience handling a jury trial and never argued any motions in federal or state court.
However, it is not entirely unusual for a federal judge to be named without ever trying a case in front of a jury. Nancy Freudenthal, a nominee of President Barack Obama in 2010, was named to the Wyoming District Court even though she never tried a jury case. The Senate confirmed her by a vote of 96 to 1.
America Has a History of Naming Non-Judges to the Federal Courts
America has quite an extensive history of naming inexperienced individuals to federal courts, including the United States Supreme Court. There is also no set of rules outlining qualifications to become a Justice of the U.S. Supreme Court. Even though every current and former Supreme Court Justice was a lawyer, of all that have served throughout our history, more than a third did not have any prior judicial experience.
Although John Marshall, former Chief Justice, is credited with the Marbury v. Madison (1803) decision that made the highest court a co-equal government branch, giving it judicial review over the acts of Congress, he was woefully inexperienced.
Before Marshall joined the Court, he had only been studying law for six weeks and had little to no formal schooling of any kind. He never worked as a judge, and he had previously lost a case that he argued in the court, which was in front of the Supreme Court.
Other highly respected Justices had no judicial experience before being appointed to the country’s highest court, including Louis Brandeis, Earl Warren, Felix Frankfurter, and William Rehnquist.
While it seems crazy to think that anyone can become a federal judge in Maryland, there are informal checks and balances. ABA recommendations, federal background checks, and a nominee’s willingness to step aside to avoid embarrassment seem to have worked so far.