No Senators = Bad Judges?

In Sunday’s Washington Post Tony Bullock had an interesting piece about the selection of federal judges and how the District of Columbia’s lack of congressional representation may have impacted the recent D.C. Circuit decision striking down D.C.’s gun ban.

As Bullock explains, the selection of federal judges normally involves a discussion between the president and the senators from the state in which the judge will sit. Even when the president and the respective senators are from different parties, the president usually works with them to help select federal judges. “In most states, the nominations originate at the state level with direct input from voting members of Congress.” (Of course, President Bush has not always honored this system of consultation with the home-state senators.)

In addition, even minority-party senators can use parliamentary maneuvers to stop judges from making it to the Senate floor. For example, unless both senators from a state have expressed their approval for a nominee through returning what are known as “blue slips,” the Senate Judiciary Committee chair will customarily not bring the nominee up for a vote. (That is, except for recent Republican chair, Senator Orrin Hatch, who pushed through some of President Bush's nominees without both blue slips being returned, thus disregarding the long-standing tradition.) This process “assures at least some bipartisanship and pragmatism regarding whom the president nominates to the federal bench.” But, as Bullock adds, “it is necessary to have a senator to exercise this power.”

Bullock explains that this process impacts the makeup of the federal judiciary in different parts of the country:

Through advice and consent over time, the federal district and circuit courts have come to reflect the political and judicial ideologies of individual senators and the states they represent. But, given that the District has no representation in the Senate, the District has no advocate in the process and no direct or indirect influence on the outcome. Consequently, the D.C. federal courts are not ‘representative’ of the residents of the District.

Because the District is also the seat of many federal agencies and its courts often have exclusive or concurrent jurisdiction over events of national scope, no one is suggesting that its representatives in the Senate -- if it had any -- would have the same prerogatives as senators weighing in on judges in their states. But as it now stands, residents in the District of Columbia have no influence at all on the selection of judges who have the power to strike down democratically enacted laws.