Judge McKeague and the Cost of Confirmation

On Friday, July 22, I was privileged to attend the investiture of Judge David McKeague to the bench of the 6th U.S. District Court of Appeals. Held in a small theater in Michigan State University’s Wharton Center, the ceremony was attended by more than 250 of McKeague’s family members, judicial acquaintances and friends.

In addition to the court clerk’s formal reading of the commission from President Bush and the administration of the judicial oath, McKeague and three others made short speeches. Though the Senate delayed his confirmation for almost four years, McKeague professed admiration for our system of nominee confirmation, saying that when he was asked if he hated politics, his standard answer was that it was not politics he had a problem with, but politicians.

McKeague considers the current viciousness of the Senate confirmation process detrimental to the long-term health of our judicial system. Because of the scrutiny and personal attacks under which recent nominees can find themselves, the cost of putting one’s name forth for possible nomination has increased exponentially. McKeague posits that the result is fewer people willing to accept nomination, and that those few are from one of three groups: a select set of sitting judges who have already survived the process, law professors who are difficult to attack because they have not published many articles, and politicians who are used to being beat up and scrutinized during campaigns. As a result, he says, justices with trial court experience — the very justices who have experience valuable to the higher courts — are increasingly scarce in the upper levels of the judiciary.

Why is this? Why does the pool of possible judicial appointees exclude many talented and knowledgeable individuals who are no longer willing to bear the increased personal and professional cost of appointment?

The answer is ultimately economic. As the cost of something — anything — increases while the gross value remains constant, the net potential gain decreases. And when the net potential gain decreases, the relative value of alternatives increases.

Thus, as judicial confirmations become more difficult (and less assured), an increasing number of people value what was once their second-best alternative more highly than accepting a federal judicial appointment. As the cost imposed by the politicians on the confirmation process increases, more and more good potential judges, many of whom are well-compensated in the marketplace, will be unwilling to accept a nomination even to lower courts. They will recognize that any movement to a higher bench will be costly indeed.

If Justice McKeague’s three groups — or any other easily confirmed groups — dominate our federal judicial structure, it will not be caused by any special desire or diabolical scheme, but because of their inherently lower cost of confirmation. As things stand right now, McKeague is one of only two judges on the 6th U.S. District Court of Appeals with trial court experience.

Yet this possible loss of courtroom experience is not the true harm of increased confirmation costs. The true harm is that each increase in cost removes another layer of men and women who have proved their worth in the marketplace from the pool of those willing to accept nomination.

Our system is not broken, but it has been misused. For all the difficulties, our system works. The Senate’s check on the president’s appointment of federal judges is a proper one, and of course, our court nominees should be questioned about their judicial views and temperament. Nevertheless, they should not be subjected to scurrilous personal attacks that needlessly discourage qualified candidates from accepting a nomination.

Though this is a national issue, the core lesson is eminently applicable to Michigan — that politicians must restrict themselves from exceeding their role. But since politicians in fact have many incentives to do just the opposite, our responsibility as citizens comes to the fore. We must provide the incentive that restrains state and local politicians from exceeding their defined functions by letting them know when they step out of line.

Nathan Russell is an intern the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.