Since its inception, AFJ has been the premier organization raising awareness of the critical importance of the federal judiciary. With over 120 member organizations representing millions of individuals, AFJ is leading the effort to ensure that the Biden administration prioritizes filling judicial seats.
Well before the end of the Trump era, AFJ launched Building the Bench to identify and advocate for the nomination and confirmation of highly qualified, demographically and experientially diverse nominees for the federal courts with a demonstrated commitment to equal justice: lawyers who are demographically diverse, including from communities of color, women, LGBTQ communities, people with disabilities, and other underrepresented groups; and who come from a range of professional backgrounds, including public interest lawyers, civil rights lawyers, labor lawyers, plaintiffs’ lawyers, and public defenders.
As President Biden begins to fill vacancies, AFJ is heartened at the many remarkable lawyers across the country who have stepped forward and expressed interest in becoming a federal judge. Our federal bench can only reflect the breadth of the legal profession if demographically and experientially diverse lawyers put their names forward.
Under the U.S. Constitution, the president appoints federal judges by and with the advice and consent of the Senate. The entire process — from vacancy to confirmation — can take months, if not years.
There is no doubt that the judicial nomination process is intensive and time-consuming. Regardless of your background or qualifications, it takes effort and advocacy to fill out the application and navigate your Senator’s commission, White House vetting, and a Senate hearing and confirmation vote. But while it may seem daunting, by preparing well and being willing to advocate for yourself, you can ensure you are ready for the process. Beyond the peace of mind this will bring, it will also give you the best possible chance at being nominated and going through a relatively smooth confirmation process.
Given the many lawyers interested in joining the bench, AFJ has prepared this document to describe the process of how one becomes a judge and to address frequently asked questions.
Below are frequently asked questions regarding the nominations process for those considering judgeships and their advocates.
When Do Vacancies Occur on the Federal Bench?
Federal judges, under the Constitution, “hold their offices during good behavior” — in other words, they are appointed for life and serve until death, retirement, or, in rare cases, impeachment. It is, therefore, up to each judge to decide when to step down.
Vacancies can occur if a judge dies, fully retires, or takes what is called “senior status” — a form of semi-retirement during which a judge continues to hear some cases. Judges become eligible for senior status when they are at least 65 years old, have served as a federal district or circuit court judge for at least 10 years, and their age plus their years of service add up to 80. This calculation is known as the “Rule of 80.” For example, a judge who is currently 66 years old and has served for 14 years is eligible to take senior status. However, a 69-year-old judge who has only served for 10 years is not eligible.
Judges can vacate their seats immediately. Many judges, however, give advance notice of up to one year before they plan to leave a federal district court or circuit court of appeals. Many tie their departure to Senate confirmation of their successor.
What is the role of home state senators in the nomination process? When is the best time to let my senators know that I am interested in a judgeship?
When a vacancy occurs, the White House will traditionally consult with the U.S. senators who represent the state in which the vacancy is located, often seeking their recommendations before identifying candidates to fill the vacancy.
Traditionally senators are accorded greater deference for district court seats. The home state senators, in particular those of the president’s party, take the lead in recommending candidates to the White House. While circuit courts are comprised of multiple states, by custom each seat is held by judges from a particular state. However, with regard to appellate judges, the White House traditionally has taken more of a leading role in identifying and selecting candidates, with appropriate consultation with home state senators.
For district court seats, senators typically will begin considering potential nominees, either through their office or through a nominating commission, shortly after a vacancy is announced, so you should let them know of your interest at that time. Additionally, if you have connections to your senator’s office or judicial nominating commission, it may be helpful to reach out in advance of a vacancy to note your interest. When a vacancy does arise, sometimes senators or commissions will reach out to attorneys who have expressed interest to let them know that the application process is open and provide details about applying.
Many senators — although not all — have a nominating commission made up of attorneys in the state.
In states with one Democratic senator and one Republican senator, senators often work together and have formed bipartisan commissions to identify and recommend candidates to the White House acceptable to both senators, for example Wisconsin, Ohio, and Pennsylvania.
In states with two Republican senators, some home state Congressional Democrats have also formed commissions and accepted applications, for example in Florida and Texas, to provide input to the White House. These commissions are separate from those formed by the Republican senators in those states.
Moreover, Washington, D.C.’s delegate, Eleanor Holmes Norton, has been given deference with respect to district court vacancies, and she in the past has utilized a commission.
What are judicial nominating commissions? How do I find information on my home state senators’ commission?
Many commissions are formal and public; senators may issue press releases with information on how to apply and application deadlines. For example, senators in states including California, Georgia, and Wisconsin released information about their commissions early on in the Biden administration. To find information on public commissions, it is best to visit your senators’ websites.
Other commissions are private and, in many cases, informal. If you cannot find information on a commission, or even whether a senator utilizes a commission, you should contact your senators’ offices to determine how they are considering applicants to the federal bench. Bear in mind, commissions often have short deadlines.
States with a senator from each party often have joint commissions, with commissioners appointed by each senator. These commissions often require a super-majority of commissioners to recommend a candidate.
In many states, commissions recommend multiple candidates to senators, who in turn recommend all or some to the White House to be nominated.
Can home state senators block the President’s nominee (the “Blue Slip”)?
Historically, no judicial nomination would proceed unless both home state senators approved and returned what is called a “blue slip” — literally a blue piece of paper that indicates the senator’s approval of the nomination to move forward. When Donald Trump was President, Senate Republicans eliminated the “blue slip” for nominees to the courts of appeals. In other words, Trump circuit court nominees were confirmed over the objections of home state Democrats. Senate Judiciary Committee Chairman Richard Durbin has indicated he will maintain that policy for Biden nominees.
The blue slip does remain in place for district court nominations, however. That means that both home state senators, regardless of party, must approve of a nomination moving forward before their confirmation will proceed. For that reason, as discussed above, Democratic senators in states with Republican colleagues often form joint commissions to consider candidates (e.g., Wisconsin, Ohio, and Pennsylvania).
What is the best way for me to position myself for a federal judgeship? What sort of relationships in the legal community can be helpful to my candidacy?
Simply put, the best way to position yourself for a federal judgeship is to be an excellent attorney who is deeply involved in whatever area of law you specialize in. There is no need to spend your career making decisions based on what you think best positions you for a judgeship — in fact, doing this may even hurt your chances. Instead, focus on excelling at the type of legal work you genuinely enjoy and wish to pursue.
It is also incredibly helpful to build relationships in the legal community with people who can be advocates for you when you apply for a judgeship. You can build these relationships by being involved in local Bar Associations, reaching out to nonprofits whose missions you support, and by maintaining good relationships with judges you appear before and with opposing counsel when possible. It is also helpful to identify and make contact with individuals who know your home state senators to help ensure the senator’s office is best aware of your interest and application.
Most judges have been prosecutors or corporate lawyers, but my career has been in criminal defense or public interest work. Should I apply to be a judge?
In a 2014 report, Alliance for Justice highlighted that the overwhelming number of judicial nominees were prosecutors or corporate lawyers, and often both, yet they certainly aren’t the only attorneys considered qualified to sit on the bench.
Numerous public defenders and civil rights lawyers have been outstanding jurists, including Jane Kelly on the Eighth Circuit, Richard Paez on the Ninth Circuit, Robert Wilkins on the D.C. Circuit, and even Supreme Court Justices like Ruth Bader Ginsburg and Thurgood Marshall. Devoting your career to this type of work should not discourage you from applying for a judgeship—quite the opposite. People with these types of legal experiences are underrepresented on the bench and bring an important perspective, something President Biden recognizes and has stated he intends to rectify.
President Biden in fact has emphasized his goal of increasing the professional diversity of federal judicial nominees, and his nominees thus far have included many public defenders. For instance, Candace Jackson-Akiwumi, nominated to the Seventh Circuit, served as a federal public defender for ten years. The Biden administration has also expressly stated that in addition to public defenders, they are interested in nominating civil rights, legal aid, and other lawyers working in roles that are underrepresented on the federal bench.
If I am a defense attorney, will my vigorous defense of criminal defendants be held against me?
In the past, public defenders have been subject to attacks for their records when considered for judgeships. Judicial Crisis Network, for example, aired ads against Jane Kelly — a former public defender now serving on the Eighth Circuit Court of Appeals — because of whom she represented.
However, President Biden has indicated an interest in nominating more lawyers with criminal defense backgrounds to the federal bench. Already, two of President Biden’s Courts of Appeals nominees with public defender experience, Judge Ketanji Brown Jackson (D.C. Circuit) and Candace Jackson-Akiwumi (Seventh Circuit) have been confirmed by the Senate.
In the past, Republicans have supported public defenders’ nomination to the bench. Senator Chuck Grassley and nearly all Senate Republicans supported Jane Kelly in 2013. Republicans also supported Trump’s nominees who had worked as criminal defense attorneys, like Anuraag Singhal, who represented a serial killer, among other violent criminals. In 2010, Republican Senator Lindsey Graham noted that, as a defense lawyer in the military, he represented people who “were charged with some pretty horrific acts, and I gave them my all. This system of justice that we’re so proud of in America requires the unpopular to have an advocate and every time a defense lawyer fights to make the government do their job, that defense lawyer has made us all safer.” And, it was Chief Justice John Roberts (who did pro bono work on behalf of a convicted murder) who, in his confirmation hearing, celebrated John Adams for representing soldiers charged in the Boston Massacre (what Adams called “one of the best Pieces of Service I ever rendered my Country”).
The best way to mitigate unfair attacks on your record is to make a positive case for yourself and the work you have done. As Democrats and Republicans alike have stated, public defense work is integral to our constitutional system of justice and helps protect the rights of all by ensuring fair criminal proceedings. You do not need to defend or apologize for this work; in fact, it is important to have judges on the federal bench who understand what it is like to represent individuals facing the power and resources of the United States government.
My work has involved public policy advocacy and I have been a vociferous advocate for civil rights and public interest causes. Will this advocacy be held against me?
A background in policy advocacy in no way disqualifies you from becoming a judge. In fact, the Biden administration is actively interested in nominating individuals with backgrounds from all corners of legal profession. However, if your background is in policy advocacy, you will need to demonstrate to the Senate Judiciary Committee that you are prepared to serve as an impartial and fair-minded jurist from the bench.
Many lawyers have worked in public policy and gone on to serve on the bench. Judicial giants like Ruth Bader Ginsburg and Thurgood Marshall were outspoken on public policy earlier in their careers. During the Trump administration, Senate Republicans confirmed several nominees who had worked as partisan advocates committed to rolling back our hard-earned rights and protections, including Andrew Oldham, now on the Fifth Circuit, who had openly questioned the legitimacy of the EPA and Department of Labor, and Justin Walker, now on the D.C. Circuit, a Mitch McConnell loyalist that advocated vehemently against the Affordable Care Act. Given Republicans’ past support for these individuals, there is no reason for President Biden to shy away from nominating lawyers who, from the bench, will uphold and preserve legal protections for all Americans.
What personal and professional information do senators, their commissions, and the White House consider?
Both Senate offices and the White House will vet a candidate’s background. In addition to the information contained on the Senate Judiciary Committee Questionnaire (SJQ) (which asks detailed questions about employment history and requests lists of cases litigated, judicial opinions issued, and public writings and speeches), Department of Justice lawyers will investigate a candidate’s legal qualifications and backgrounds. At some point in the process, you can expect your colleagues, opposing counsels, judges, and members of the local legal community will be interviewed. Senate Judiciary Committee Questionnaires are publicly available and easily found online for any nominee or current judge.
In addition, if you are a finalist, the FBI will perform a confidential investigation. It will include a candidate’s criminal history, tax compliance, and professional reputation interviews.
Is prior drug use disqualifying?
In the past, with rare exceptions, the use of “hard drugs” has been considered disqualifying. Repeated use of marijuana after being admitted to the Bar has been considered disqualifying. If you are being vetted by the FBI, you should expect any past drug use to become known. It is advisable not to withhold, at any stage of the process, information regarding past drug use, as it may become known to decision-makers.
As I am applying to commissions or the White House, is it helpful to garner legal validators and letters of support?
Yes. Ensuring commissions, Senate offices, and the White House are aware of your reputation within the Bar and your community enhances your candidacy. Letters should speak to different aspects of your professional career, as well as community involvement. It can be particularly helpful to think of potential validators working in different areas of the legal profession to demonstrate the breadth of support within the community. For a public defender, for instance, a letter from a prosecutor you have litigated against may be helpful alongside a letter from a colleague or supervisor. Senators are more likely to find letters from their own constituents to be helpful in the process, although advocacy groups in Washington can be helpful in ensuring decision-makers are aware of your interest.
It can be uncomfortable to advocate for yourself like this, and to ask others to advocate for you, but it is incredibly important. You will need to make an argument to senators and the White House as to why you would make a good federal judge, and it strengthens your candidacy when people you know and have worked with reach out to reinforce that argument. Remember, others who are seeking judicial nominations will be doing this, so you will be at a real disadvantage if you don’t.
What is the role of the American Bar Association (ABA)?
Historically, the White House shared names of potential nominees with the ABA prior to nomination. If the ABA deemed a candidate unqualified, that person was not nominated. Under Donald Trump, the ABA was not consulted before nomination, and President Biden has indicated he will continue that practice.
The ABA will still rate nominees after they are nominated. The ABA standards state that the Standing Committee on the Federal Judiciary (Committee) “focuses strictly on professional qualifications: integrity, professional competence, and judicial temperament. The Committee does not consider a nominee’s philosophy, political affiliation, or ideology.” Moreover, “the Committee believes that a nominee to the federal bench ordinarily should have at least twelve years’ experience in the practice of law.”
While informative, the ABA evaluation is not dispositive. Republicans in the Senate confirmed eight of President Trump’s nominees who were rated “Not Qualified” by the ABA, including ones with less than twelve years experience.
What happens once a president nominates an individual and sends a name to the Senate?
After the President formally nominates an individual, they send the name to the Senate with accompanying paperwork. Nominees will have to complete the Senate Judiciary Committee Questionnaire (SJQ), which asks for information regarding employment history, requests lists of cases litigated or opinions drafted, and requires financial information. The Senate Judiciary Committee will make most of the information on this form public.
The FBI will also provide the committee with reports related to its investigation, but these will not be made public.
Will I need to track down and provide everything I’ve ever written? Is it ever too early to begin preparing my paperwork?
Completing the Senate Judiciary Committee Questionnaire requires listing all books, articles, reports, letters to the editors, editorial pieces, or other published materials, including materials that are only on the internet, like blogs. This requirement has been limited to materials written post-high school and has not included posts on social media accounts, including Twitter or Facebook.
Many senators’ application processes require disclosing much of what will be required by the Senate Judiciary Committee Questionnaire. Because of this, you may need to have much of your paperwork prepared before applying for a judgeship. It can be a great deal of work to gather all these materials, so it is generally best to start as early as possible so that you can apply quickly.
If I do not need to turn over my Twitter posts, is my social media activity still relevant?
Yes. Senators and the White House will review your social media and you should be prepared to answer questions about all of your online activity. Nominees in some recent confirmation fights had to account for their social media accounts. Judge Don Willett, who was confirmed to the Fifth Circuit in 2018, was asked during his confirmation hearing about a tweet in which he demeaned same-sex marriage. Brett Talley was not confirmed after it was reported that he, anonymously, had praised the original KKK in an internet chat room. Most recently, Neera Tanden, President Biden’s nominee to lead the Office of Management and Budget, withdrew her nomination after bipartisan criticism of tweets she had written criticizing the Trump administration and Republican Senators.
Is the information provided to the Senate Judiciary Committee public?
The information on the Senate Judiciary Committee Questionnaire is made available to the public. The FBI report to the committee is confidential.
What happens if I apply and do not hear anything for a long time?
The entire nominations process, from vacancy to nomination, takes a long time, and much of the activity (e.g., vetting) happens behind the scenes. If you have applied, you should not be shy about occasionally checking in with your senator’s office.
What happens after a nominee is formally nominated?
Under Senate Judiciary Committee practice, a hearing will be held a minimum of 28 days after receiving a questionnaire. At the hearing, committee members have an opportunity to question a nominee. They also will have an opportunity to send written questions “for the record,” and your written answers to these questions will be public.
Following the hearing and answers to written questions, a Committee vote is scheduled. The first time a vote is scheduled, any member of the Committee can delay a vote until the next business meeting (usually a week) without reason. This one-week delay (called “holding over” a nominee) is now routine and not a reason for concern.
Once a nominee is voted favorably out of Committee, the nomination is forwarded for consideration by the full Senate.
Senate rules used to allow filibustering of judicial nominations (effectively requiring 60 votes for confirmation). In 2013, the Senate changed the rules and lowered the required votes for nominees, except Supreme Court nominees, to 51; the vote was lowered for Supreme Court in 2017. A simple majority of the senators present and voting is required for the judicial nominee to be confirmed. If there is a tie, the Vice President, who also presides over the Senate, casts the deciding vote.
For circuit court nominees, there are 30 hours of debate between the cloture vote and confirmation vote. For district court nominees, there are two hours of debate.
Once confirmed, the president signs the nominee’s commission, and you serve for life!