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28 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW cept or the manner in which it has functioned have come to light during consideration of this subject, and there is no basis for recommending any change in the role of that commission. III. PROS AND CONS OF PRESIDENTIAL VS. MAYORAL SELECTION OF JUDGES A. Reasons for Mayoral Selection of Judges The primary impetus for altering the present method of selecting D.C. judges is the desire to fulfill the home rule aspirations of citizens of the District. The selection of judges by the President and approval by the Senate is seen as a vestige of colonialism. The selection process is viewed as inconsistent with the principle that citizens of the District of Columbia should enjoy all rights enjoyed by citizens of other states, which include the right to have judges selected and confirmed by officials elected by the citizens of the District. The home rule concept is most significantly embodied in the Home Rule Act of 1973. 15 That bill originated in the House of Representatives and, as reported by committee to the full House, provided for mayoral appointment and Council confirmation of judges. However, this element of the reported bill was deleted by floor amendment by a fairly closely divided vote, and the provisions for Presidential appointment and Senatorial confirmation were restored. 16 Throughout the nation, appointments of non-federal judges to courts of general jurisdiction are typically made by the highest elected official in the state, the Governor, and are usually subject to legislative confirmation. There are some instances of judges of city courts in which Mayors have the appointment power. 17 For the District, the analogy is not perfect to other states or to other cities. Geographically, the District resembles other cities, but its powers and functions include many that would reside elsewhere with state governments. 1S On the other hand, the District differs from states in that its legislative acts are subject to congressional oversight, and it does not possess sufficient territory to allow for different geographic characteristics and population centers that are characteristic of most states. Nonetheless, those who support changing to a mayoral selection system point out that the Mayor is the highest elected executive official in the jurisdiction, and in that sense, is equivalent to the Governor of a state. The Council is the legislative body elected from the entire jurisdiction. The selection and confirmation from these offices is said to be preferable to those functions being perpanel of retired judges, or to the Dean of the U.D.C. David A. Clarke School of <strong>Law</strong>, or to a panel of the deans of all law schools situated in the District. 15 See generally Pub. L. No. 93-198, supra note 3. 16 119 CONGo REC. 33635-33641 (Oct. 10, 1973). 17 New York, Denver, Atlanta, and Kansas City are among the more prominent examples. 18 For example, vehicle registration, health care programs, and oversight of the education system are typical state government functions.
WHO SHOULD APPOINT JUDGES OF THE D.C. COURTS? 29 formed by an executive not elected by the people of the District and a confirming legislative body that neither is elected by nor contains a representative of the people of the District. There appears to be no constitutional barrier to the mayoral method of selecting judges for the District. Given the broad power of Congress over the capital district under the District clause of the Constitution 19 and the fact that the courts are established under Article I rather than Article III of the Constitution, the authority of Congress to, in effect, delegate the selection process to local entities cannot seriously be questioned. On the other hand, an Act of Congress would be required to achieve that end, for, as indicated above, the Presidential selection process is currently required by the Home Rule Act. An important point made in favor of the mayoral selection method is that there is a significant delay in filling vacancies under the current regime. The delay is derived primarily from the length of time it typically takes to secure senatorial confirmation of a nomination. 20 Among other consequences, this can substantially deter lawyers from pursuing judicial appointment. Many lawyers, particularly those not associated with very large firms, might be unable to sustain their practices during an indefinite period of time between their appointment and their confirmation. The delay also impacts the courts, as protracted vacancies in judicial positions add to the work pressure on the remaining members of the bench. These points assume that confirmation by the Council would typically occur far more rapidly. B. Reasons Against Mayoral Selection of Judges The case against changing the current method of judicial selection is based on two principal considerations: (1) That the proposed change would introduce potentially undue political influence into the judicial process, and (2) that the present system works well and produces excellent judges. The essence of the first objection is that, by giving the Mayor the power to select judges and the Council power to confirm any appointments, the process would become too political. This concern is exacerbated by the absence of life tenure for judges. It is contended that some judges would be reluctant to render a decision adverse to political figures who have a major role in the judicial appointment or reappointment process. 19 U.S. CONST. art I, § 8, d. 17. 20 A recent study by the Council for Court Excellence reported that for twenty-nine completed judicial appointments under the Home Rule Act regime for which data was available, the average time from the forwarding of nominations to the President to the actual investiture of judges was eleven months. The range of time was between five and twenty-nine months. See CCE PUBLICATION, supra note 4. Given the sixty-day deadline for Presidential action on nominations forwarded by the Commission. it is evident that the Senatorial confirmation process was the primary cause of the delay in completing the filling of judicial vacancies.
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