Nov. 18, 2009 – After a record year of activity, Wisconsin’s Federal Nominating Commission has concluded its consideration and recommendation of applicants for five vacant federal positions subject to presidential appointment, including most recently a vacancy on the Seventh Circuit Court of Appeals in Chicago.
Two judicial openings in Wisconsin’s Western District and the U.S. attorney positions for both the Eastern and Western Districts of Wisconsin were the other openings for which the commission narrowed a competitive field of candidates.
The commission is not expected to reconvene in the near future unless an additional federal judicial vacancy occurs in Wisconsin or on the Seventh Circuit.
States differ
By tradition, the president defers to the recommendations of the home state’s U.S. senators for these positions. But how each state’s senator arrives at those recommendations differs.
In 1979, Wisconsin’s two U.S. senators, William Proxmire and Gaylord Nelson, established the Wisconsin Federal Nominating Commission. That system has endured. Democratic and Republican senators have used the commission for every federal judicial and U.S. attorney vacancy in the past 30 years, under both Republican and Democratic presidential administrations.
According to the American Judicature Society, 16 states including Wisconsin use nominating commissions today to recruit, screen, and recommend candidates for presidential appointment. Besides Wisconsin, those states include California, Colorado, Connecticut, Florida, Hawaii, Illinois, Massachusetts, Michigan, North Carolina, Ohio, Oregon, Pennsylvania, Texas, Vermont, and Washington.
Senators in several other states have adopted similar procedures, although not necessarily structured commissions.
By tradition, in most states without a formal selection process, the senior senator advances recommendations, often unilaterally, for presidential consideration.
Commission procedures
Each senator may appoint commission members based on their political party and that of the president, according to procedures set forth in the commission’s charter.
When both senators are of the same party as the president, each senator appoints four members and the State Bar of Wisconsin appoints two members. If the two senators and the president are of different parties, each senator appoints two members, the State Bar appoints two members, and the “most senior elected official” of the president’s party appoints four members.
If only one senator is not of the same party as the president, the senator from the president’s party appoints five members, the other senator appoints three members, and the State Bar appoints two members.
Under all scenarios, however, the commission is chaired by the dean of the University of Wisconsin Law School for Western District vacancies and by the dean of Marquette University Law School for the Eastern District vacancies. To fill Wisconsin vacancies on the Seventh Circuit Court of Appeals, each dean serves as co-chair.
Under the charter, when requested by the senators, the commission affirmatively seeks out candidates. The commission then evaluates the qualifications of all candidates and designates by majority vote the names of at least four – but not more than six – individuals who possess the “relevant qualities of character, experience, temperament, and professional competence” necessary for the position.
Commission members vote by secret ballot. Under the charter, the proceedings and all information received by the commission remains confidential, except the charter authorizes the commission to release the names of those who have submitted applications. The commission also releases the names of those selected to be forwarded to the senators.
A model for others
In August 2008, the American Bar Association’s House of Delegates recommended that more states use judicial nominating commissions, based on the experience in Wisconsin and seven other states.
Under the 2008 ABA proposal, both U.S. senators from each state would establish a judicial nominating commission that, like Wisconsin’s, would forward a short list of recommended candidates. The senators could then forward their own choices from that list to the president, who remains free under the Constitution to appoint anyone he or she chooses subject to Senate confirmation. The ABA suggested this process would reduce the amount of vitriol that has surfaced in past judicial confirmations based on conflicting ideological agendas.
Many openings
The commission this year considered 11 applicants for the Seventh Circuit vacancy, ultimately recommending six candidates to Kohl and Feingold.
The commission also considered this year 10 applicants for the Eastern District U.S. attorney and in the end recommended four. Similarly, it received seven applicants for the Western District U.S. attorney and recommended four candidates for that position as well.
To date, Kohl and Feingold advanced to the president two names for the president’s consideration for the Eastern District U.S. attorney position as well as two names for the Western District U.S. attorney. The senators, receiving the commission’s recommendations for the Seventh Circuit vacancy on Nov. 14, have not yet advanced to the president any recommendations for that position.
Drawing from the senators’ list for the Western District, Obama nominated Madison attorney William Conley to replace Judge Crabb on Oct. 29. Obama nominated former Wisconsin Supreme Court Justice Louis B. Butler, Jr. to replace Judge Shabaz on Sept. 30. The Senate Judiciary Committee held a hearing Nov. 4 on the Butler nomination.
This year’s commission
The commission this year consisted of 10 Wisconsin lawyers and was chaired by University of Wisconsin Law School Dean Kenneth Davis and Marquette University Law School Professor Michael O’Hear, with staff support provided by the State Bar of Wisconsin’s government relations team.
Kohl appointed four attorneys to this year’s commission: Stephen Glynn and Nathan Fishbach, both of Milwaukee, Christine Bremer Muggli of Wausau, and Michelle Behnke of Madison.
Feingold appointed four attorneys: Ken Calewarts of Green Bay, Chuck Curtis of Madison, Peg Lautenschlager of Fond du Lac, and Harvey Temkin of Madison.
Diane Diel, who at the time was president of the State Bar, named attorneys Susan Hansen of Milwaukee and Thomas Sleik of La Crosse.
Adam Korbitz is the Government Relations Coordinator for the State Bar of Wisconsin.
