Federal district court judges (trial judges) are appointed for life by the President of the United States. Their nomination is the province of the United States Senators from the state in which they will sit.
In Kentucky, you can pretty well bet that any judge who gets the President's nod, got Mitch McConnell's blessing first.
Amul Thapar has recently been confirmed by the United States Senate to serve as judge for life in Eastern Kentucky. He is, by all accounts, very bright. However, his appointment raises a serious question.
Why do these appointments all seem to come from the ranks of federal prosecutors? There are certainly many highly qualified attorneys and judges with significant connections to Kentucky and substantial trial court experience who would make excellent federal judges. Yet the qualifications which seem to be given higher priority in this selection process are youth, political connections and the limited experience of having served, however briefly, as a federal prosecutor.
The answer to the question is this. Since these appointments are for life, youth is a plus. There are still Nixon appointees serving on the bench.
Political connection is required because the process is fully political. The U.S. Senators make the nomination. If both are from the same party as the President, the Senior Senator has to agree. If only one Senator is from the same party as the President, that Senator gets the choice. If neither is from the same party as the President the choice goes to the Senior Senator, or, could be influenced by other political considerations.
But it is much harder to understand why trial experience limited to that of a federal prosecutor so severely narrows the field of choices.
True, most of the docket in federal trial courts is consumed by criminal cases as the result of Congress meddling in what historically has been the exclusive province of the states (criminal conduct) by "federalizing" nearly everything humans do through a very strained interpretation of the "commerce clause".
And it is also true that Congress has shown its disdain for civil litigation by increasing the minimum amount required for a suit to be filed in federal court, relaxing the rules that make summary dismissal without the involvement of a jury so much easier and tolerating delays in the actual trial of a civil matter which are so bad that a civil case filed in federal court might as well be sent to the black hole of the civil litigation universe.
But federal trial courts do much more than these things. Nearly all extremely important constitutional issues start there. The next case to challenge Roe v. Wade, determine the meaning of the second amendment or examine the right of eminent domain will likely be filed, or removed to, a federal trial court. And it is because these critical decisions will in many ways be ultimately affected by the quality of the record created at the trial level, that it is perplexing why the limited experience of a prosecutor is given such high priority in the nomination process.
While the appointment process has its advantages there is certainly nothing in our experience with it here in Kentucky which should cause anybody to throw the public election of judges overboard.
As one wise lawyer once told me, the appointment of judges is still an election, it's just that the votes needed to win come from a dramatically smaller constituency.
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