Secret Judicial Appointment Process and the Blogs

A couple of trends in public life collided in Oregon recently–-the heightened politicizing of the secretive federal judicial appointment process and the open forum push-back of the internet. As a result of the impact, we probably won't see the local attorney who famously deposed Monica Lewinsky for Ken Starr's investigation on the federal bench.

There is a current opening on the federal district (trial) court for Oregon, as Clinton appointee, Judge Garr King, is taking senior status. Recent rulings by Oregon’s newest federal judge, Judge Michael Mosman, have reminded Oregonians of the crucial role these life-time federal appointees play in shaping our lives. Unlike state trial judges and appeals court justices, who stand for election every 6 years, federal court judgeships are forever.

The nominating process is secretive, and attorneys do not comment publicly for fear of appearing for the rest of their careers in front of a judge they opposed at the nomination process. Thus, the organized bar merely supplies safe testimonials. The internet changes that.

It was both unusual to see the name of current US Attorney, Karin Immergut, floated publicly as being “under consideration” for recommendation for the judicial opening, and it was equally unusual to see the storm of comment arising from Democratic activists (and from attorneys using the anonymity of bloggers) on Blue Oregon and elsewhere.

“Traditionally,” the US Senator from the sitting President’s party submits the names of several potential nominees, the "short list." For years, Oregon’s Senators have cooperated (more or less) on submitting the names of finalists. Even the most causal observer knows that judicial appointments have become politically charged at every level, not just the high profile, but very occasional, US Supreme Court openings.

In this case, Immergut, a former Multnomah County DA who joined Ken Starr’s investigation of Bill Clinton, seemed to fit the pattern of Republicans appointing younger (Immergut is under 50) and politically active attorneys to the federal bench, where they can sit for decades.

We now learn that Immergut has not made the short list of 3, and the finalists now include a long-time state court judge with poverty law experience, a member of a well-connected downtown law firm with a lot of trial experience, and a current longtime federal magistrate (magistrate appointments are renewed every 10 years, and they do not have the full powers of the “Article III” judgeships mentioned in the Constitution).

Realistically, it is unlikely that any of the judge nominees submitted this year will go through confirmation hearings and be confirmed in the remaining months of this session. But it is a change from the past to have even a modicum of spirited public input on the nomination process. Let's look for more openness in 2009 and thereafter.