For half a century, the process of appointing judges to municipal District of Columbia courts has flouted the Constitution. While the president nominates the judges and the Senate confirms them, the president is confined to selecting nominees who are recommended by a panel known as the Judicial Nomination Commission (JNC). The JNC’s seven members, in turn, are picked by a combination of local government officials, the D.C. Bar, and one each by the president and by the chief judge of the U.S. district court for the District of Columbia.
And if that does not seem already stacked against a Republican president given the proclivities of the D.C. government and bar, consider that President Trump has never had the opportunity to select the JNC’s one presidential appointee, Addy Schmitt. She was selected for a five-year term by President Obama and reappointed by President Biden. And the chief judge’s appointee is fellow district judge Tanya Chutkan, who has been notably hostile to the administration. (Just this week, the D.C. Circuit vacated, as an abuse of discretion, her preliminary injunction attempting to block the EPA from terminating Biden-era “climate” grants to favored nonprofits.)
D.C.’s Commission on Judicial Disabilities and Tenure (CJDT), which among other things handles the reappointment of judges, further removes the president from the process. It also consists of seven members, appointed by the same officials who appoint JNC members, so the president again has only one pick. When D.C. judges’ 15-year terms expire, the CJDT reviews their performance and rates them in one of three categories, each carrying immediate consequences. If a judge is deemed “well qualified,” their term is “automatically extended” without any presidential involvement or Senate confirmation. If deemed “unqualified,” the president is prohibited from renominating them. Only the middle category of “qualified” allows for the president to renominate the judge, subject to Senate confirmation.
This byzantine system strips the president of his Article II appointment power over judges who wield federal judicial authority in the nation’s capital, and it does so in two directions. He cannot choose whom to nominate initially, and he may be forbidden from renominating or forced to accept automatic reappointment during the tenure process. The Founders did not design the appointment power to be exercised by committee, with the president having only a token presence that can easily be overridden by decisionmakers with a different agenda.
Consider as well the dangerous real-world impact of this broken system. Judge Todd Edelman of the D.C. Superior Court was recently deemed “well qualified” by the CJDT and automatically reappointed to that court. President Biden had nominated him to the federal district court in D.C., but the Senate refused to confirm him due to his soft-on-crime record, and the president withdrew his nomination early last year. Think about that: The Senate found Edelman unacceptable for a judgeship because of his deficient performance on the Superior Court, but an unaccountable commission simply reappointed him to that same Superior Court position without any input from the president or Senate. The last thing we need in an increasingly dangerous D.C. is the insulation of activist judges who are soft on crime.
Michael Fragoso and Zack Smith have argued that the president should nominate whomever he wants to D.C. judicial vacancies, regardless of JNC recommendations, and challenge the commission’s constitutionality in court if necessary. I agree. Of course, the legislative approach is best, and House Republicans are considering a number of proposals to restrict home rule in D.C. by overhauling its criminal justice system. The abolition of the JNC is one such proposal, and I hope that soon becomes the law. Either way, it is well past time for the president to reclaim his constitutional prerogatives and restore accountability to D.C.’s courts.