A Survivor's Perspective: Federal Judicial Selection from George Bush to Donald Trump

Leslie H. Southwick*

Where are we, and how did we get here?

Those are not bad questions for seeking a way out of any troubled situation, or for that matter, remaining in a good one. Over recent decades, federal judicial selection controversies are worsening in their frequency and intensity. They distort all three branches of government. My particular concern is with federal judicial selection for judgeships below the Olympian heights of those on the United States Supreme Court, namely, the judges on the twelve regional circuit courts of appeals and the ninety-four district courts.

The depth of partisan acrimony over judicial confirmations has placed us in the infernal regions, and we seem to be continuing our descent. Analyzing how we got there is invariably affected by the biases, or more gently, by the perspectives of the observer. I will try to avoid suggesting blame, but it is my hope to suggest the forces—political, historical, and even jurisprudential—that have propelled the process in the direction we have gone.

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© 2020 Leslie H. Southwick. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*The author has been a judge on the United States Court of Appeals for the Fifth Circuit since October 2007, with chambers in Jackson, Mississippi. I thank one of my stellar law clerks, Daniel Fiedler, for research assistance. Judge Kyle Duncan generously agreed to assist on a few points. Ed Whelan of the Ethics and Public Policy Center gave generously of his time in answering questions in my telephone call. Gratitude to Rita Lari with the Senate Judiciary Committee, who was able to find elusive 1992 press releases in the Committee files, and to Gregg Nunziata who pointed me in her direction. Quite diligent in obtaining sources for me were Fifth Circuit librarians Sue Creech, Brent Hightower, Melinda Williams, and Judy Reedy. My sincere thanks to them too.