Judicial confirmation hearings, then and now

John wrote today about Matthew Petersen, President Trump’s nominee for a federal district judgeship. Petersen is a substantial guy, as John shows, and he was rated “qualified” to serve as district court judge by the American Bar Association.

My strong preference, though, is for district court judges with a fair amount of experience litigating. I would not have wanted to have try a case before a judge who had little such experience and was learning on the job.

The Petersen nomination is a rare case in which the focus is on the nominee’s qualifications. Nowadays, because judges are so engaged with issues of public policy and the political parties are so polarized, the focus is usually on ideology.

When a Republican president nominates a conservative, Republicans argue that the focus should be on qualifications/credentials. When a Democratic president nominates a liberal, Democrats make that argument. But this rarely is the focus.

It didn’t used to be so. Years ago, I had case that, for convoluted reasons, brought into play the facts surrounding the nomination and confirmation of a federal district court judge. I therefore reviewed the transcript of his hearing before the Senate Judiciary Committee in the 1960s.

As I recall, the hearing lasted about 20 minutes. Sen. James Eastland, chairman of the committee, was the only Senator present.

Eastland was a segregationist from Mississippi. The nominee did not favor segregation or resistance to Brown v. Board of Education.

Eastland asked no questions about this or any political or policy matter. Instead, he asked about the number of cases the nominee had tried and in which courts.

The Federal Rules of Evidence had just been significantly revised. Eastland asked whether the nominee was familiar with the new rules. The nominee replied, modestly, that he was becoming familiar with them. Eastland was satisfied.

The nominee was confirmed unanimously, I think. He went on to become one of the nation’s best known and most distinguished district court judges, with a strong pro-civil rights record.

This was typical, I believe, of how confirmation hearings went for district court judges, and probably many court of appeals judges, back in the day. But law’s empire was smaller and more circumscribed then.

I doubt we can get back to the confirmation model of 50 years ago, or that we should. The best we can hope for is a more civilized version of the current model, and I don’t expect this, either.

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