Evaluation of the United States Court of Appeals
for the Seventh Circuit
by the Chicago Council of Lawyers

II. RECOMMENDATIONS FOR CRITERIA AND PROCEDURES FOR SELECTION OF JUDGES TO THE SEVENTH CIRCUIT.

 A. How Circuit Judges Have Been Selected.

Judges of the Courts of Appeals are nominated by the President and confirmed by the Senate. When vacancies have occurred in the Seventh Circuit, judges have usually been replaced by another judge from the same state. When new positions have been created, they have been understood to "belong" to one of the three states of the Circuit -- Illinois, Indiana, and Wisconsin.

Over the past several decades, there have been different methods of selecting Circuit Judges. In the 1960's and 1970's, Circuit Judge appointments were usually made with the active participation of the senior Senator from the state who was from the same party as the President. During the Carter Administration, circuit-wide nominating commissions were established in most circuits to screen candidates for a vacancy and forward a small list of names to the President for his consideration.

During the Reagan and Bush Administrations, the selection of federal appellate court judges was centralized in the Justice Department and the White House. While Senators usually have been given control over District Court nominations, in recent years Senators have only had input into Court of Appeals nominations, with the final decisions made by the Administration.

It is too early to know how President Clinton and the Democratic Senators or other ranking Democrats from Illinois, Indiana, and Wisconsin will handle Seventh Circuit appointments. Early indications are that the Clinton Administration intends to choose Court of Appeals judges, with input and advice from the Justice Department, and without either a merit selection panel or feeling bound to follow Senatorial advice.

 B. The Council Believes that Circuit Judges Should Be Selected by a Merit Selection Process.

The Council urges the President and the Senators to establish a circuit-wide nominating commission to solicit and review applications and forward the names of a small number of finalists to the Senators and the President. There are a number of reasons for favoring the Commission approach:

• As seen by the recent District Court nominations in the Northern District of Illinois, where a commission approach was used, people of diverse backgrounds will be encouraged to come forward.

• It provides input to the Senators and the President from a wide group of people as to the abilities and talents that a Circuit Judge should have, and that the particular candidates do have.

• An open process is a fair way to proceed. The public perception of fairness is particularly important for the appointment of a Circuit Judge.

The finalists approved by the Commission should be screened by the Senators and the President, who should make a commitment to selecting one of the finalists absent unusual circumstances.

 C. The Criteria the Council Has Used in Evaluating Candidates for Nomination to the U.S. Court of Appeals for the Seventh Circuit.

In evaluating candidates for the federal bench, the Council has identified the following standards for reviewing the qualifications of candidates:

• Legal ability (including intellect, the ability to understand and apply complex areas of the law, and knowledge of the law).

• Litigation experience in complex matters (including trial and appellate experience, preferably in federal court, and extensive experience in litigated matters involving sophisticated or complicated legal issues and analysis).

• Integrity (including independence, freedom from extra-judicial influence, personal ethics, and a demonstrated respect for professional ethical standards).

• Judicial temperament (including open-mindedness, a willingness to listen, respect for lawyers and litigants, patience, flexibility, compassion, and sensitivity to the rights and concerns of individuals of an age, race, sex, or socio-economic background different from the candidate).

• Administrative skills (including the ability to manage a demanding case load or docket, decisiveness, and sound judgment in the conduct of litigation).

• Work ethic (including willingness to work hard, conscientiousness, diligence, and thorough preparation).

• Communication skills (both oral and written).

We believe persons nominated to the federal courts should have demonstrated excellence in all of these areas.

The Council's standards for evaluating federal judges are deliberately high. Our high standards are most clearly seen when we review judicial candidates with substantial ability in some or most areas, but a lack of demonstrated excellence on one or more of the areas identified above. The Council believes that it is preferable to risk erring by not appointing such a candidate to the federal bench.

There are three reasons for doing so. First, because the appointment is for life, judges of limited ability or poor temperament cannot be removed. Second, the position is far too important to settle for less. Federal judges decide many of the most important and difficult issues our society faces. And even in less important matters, poor judges increase litigation costs, cause undue delay and uncertainty in rendering justice, and do substantial damage to litigants. Third, the position often defeats anyone lacking outstanding credentials. Experience has shown that for this position, being a good (or even a very good) lawyer or judge simply is not enough of a qualification for elevation to a federal judgeship.

In evaluating a proposed nominee to the Seventh Circuit, the Council weighs these factors somewhat differently than for District Judges. Appellate courts are strengthened by having members with different backgrounds. Thus, while strong trial court experience is good preparation for a potential appellate court judge, it is less necessary that every judge on an appellate court (as opposed to a trial court) have extensive trial experience.

Other backgrounds are also useful to an appellate court. An appellate court benefits from members with active (and differing) litigation backgrounds, experience in government, and academics. A diversity of personal characteristics is also important, so that the Court has the benefit of the perspectives of members from different groups in our society, and to increase the court's legitimacy among all parts of the public. However, in every case a judge must meet the necessary intellectual and experiential criteria.

 D. The Qualities the Council Believes Should Be Possessed by the Next Few Appointments to the Seventh Circuit.

The current Court has suffered because it has too many judges from only one or two categories of background and experience. The active members of the current Court include three judges whose principal backgrounds were academic, three with experience in the Solicitor General's office and one other government lawyer, two lawyers with substantial complex, commercial private practice experience, four who were former District Judges, one former state Supreme Court Judge, two former federal prosecutors, and one lawyer from a small private practice.^/ The Court does not have any lawyers with substantial criminal defense, civil rights, pro bono, or legal aid experience. The Court has few members with substantial experience as trial lawyers.^/ The Court just received its first woman member. No judge is a member of a racial minority group.

We believe the next few appointments to the Seventh Circuit are very important. Every judge appointed to the Seventh Circuit should meet the criteria set forth in the preceding section. But, in addition, the Court would benefit if its next few appointments possessed some or all of the following qualities:

• The intellectual capacity to engage in principled argument with the present judges, several of whom have outstanding intellectual ability.

• Increased racial and gender diversity.

• Substantial experience in preparing, litigating, and trying civil cases, and an understanding of the practicalities of trial court and appellate practice.^/

• Experience in responding to the needs of clients, and an understanding of what is needed in the Court's decisions to guide clients' behavior and resolve real conflicts.

• Substantial experience in civil rights, legal aid, criminal defense, and/or pro bono practice.

Proceed to Part III. of the Evaluation