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How Are Federal Judges Selected?

By: John Werner

· Domestic Policy,Explained

Per the U.S. Constitution, the members of the federal judiciary are nominated by the President of the United States and confirmed by the Senate. Federal Judicial nominees are traditionally recommended by members of the Senate, though sometimes the House of Representatives. Usually, House recommendations come from members of the President’s own party, while Senate recommendations can be bipartisan. Additionally, the Department of Justice, sitting Judges and Justices, and the FBI can recommend nominees to the President. Rarely, nominees can recommend themselves.

Despite the lack of an established law dictating that judicial nominees must be experienced in law, the precedent established is that nominees must have passed the Bar examination and be experienced in judicial matters. All the judicial nominees nominated by President Trump and confirmed by the Senate from 2016 to the present had legal or judicial experience. Typically, nominees are currently serving judges or lawyers.
Before nomination, there are vetting processes conducted by the White House. The White House’s vetting includes interviews with colleagues of the potential nominee, a peer review from the American Bar Association, an FBI background investigation, interviews with the potential nominee, a Senate Judiciary Questionnaire, and a Justice Department investigation into the potential nominee’s legal history. The President may confer with the leaders of the Senate Judiciary Committee before a nomination, to explore the possibility of any potential problems that may appear while confirming the nominee.
After a nominee is chosen, a long-held tradition known as “Senatorial Courtesy” exists, in which if the senators from the nominee’s state oppose the nominee, then the Senate as well will oppose and reject the nominee. Stemming from 1789, this is guided by the assumption that Senators of a state know the nominee and their qualifications better than the rest of the Senate. After all this, a federal judicial nominee will be scheduled for a hearing with the Senate Judiciary Committee, and the nomination will proceed onwards, affirming or denying the President’s nomination.

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