Can a Totally Inexperienced Person Become a Federal Judge?

Believe it or not, the U.S. Constitution sets forth no specific requirements about who can become a federal judge.

Federal judges include Supreme Court justices, court of appeals judges, and district court judges. These are all nominated by the President and confirmed by the United States Senate. They are all appointed for a life term. A federal judge is not even required to possess a law degree! U.S. Bankruptcy Court and federal Magistrate Judges are selected differently, and do not have life terms.

Although there are no legal requirements, an informal set of criteria has arisen for nominating federal judges. Potential nominees are often recommended by senators or sometimes by members of the House who are in the President’s political party.

First, candidates are subjected to thorough background checks conducted by the Department of Justice and the FBI. Those with judicial experience will have their past opinions carefully examined. Former litigators will have their performance and tactics closely scrutinized.

Any published writings, including papers dating back to college, will also be reviewed. A candidate’s public views on certain issues are also subject to scrutiny, including any social media presence.

The American Bar Association’s committee on the federal judiciary also reviews each candidate’s integrity, competence, temperament and experience. The ABA issues ratings of “well qualified,” “qualified,” or “not qualified.” The ABA’s endorsement is not necessary for confirmation but can help attract more votes for confirmation.

Brett Talley Image Source: nytimes.com

Recently, President Trump nominated a 36-year old lawyer, Brett Talley, to a federal district judgeship in Alabama. Although Mr. Talley graduated from Harvard Law School and was a deputy assistant attorney general at the Justice Department, he had never tried a case in any court.

Mr. Talley had also never argued a motion in Federal District Court. Mr. Talley was only the second nominee to receive the “not qualified” rating unanimously from the American Bar Association.

Since 1989, the association has unanimously rated only two other judicial nominees as not qualified. The Trump administration later announced that his nomination would not be moving forward.

Another Trump nominee, Matthew Petersen, withdrew his nomination to the to be a United States District Judge of the United States District Court for the District of Columbia after receiving criticism for his poor performance during his confirmation hearing.

At his confirmation hearing, which went viral, Petersen was unable to answer the most basic questions about law, such as what a motion in limine or the Daubert standard was. Petersen admitted he had never handled a jury trial of any kind or argued a motion in state or federal court.

Of course, there are federal judges who have not tried cases before a jury. In 2010 Nancy Freudenthal was nominated to Wyoming District Court by President Barack Obama, but had never tried a case before a jury. Ms. Freudenthal was confirmed by the Senate, 96 to 1.

Non-Judges on the United States Supreme Court

In fact, America has a long history of even non-judge Supreme Court Justices. There are no set rules for qualification to sit on the Supreme Court. Although every past justice has been a lawyer, 41 of the 109 justices had no prior judicial experience.

Former Chief Justice of the United States Supreme Court, John Marshall, is revered for his decision in Marbury v. Madison (1803), which is credited with making the Supreme Court a co-equal branch of government by exercising judicial review firmly over acts of Congress.

But before joining the Supreme Court in 1801 had almost no formal schooling and studied law for only six weeks. He had never served a day as any kind of judge and lost the only case he argued at the Supreme Court.

Highly respected Supreme Court Justices William Rehnquist, Felix Frankfurter, Earl Warren, and Louis Brandeis all had no prior judicial experience prior to joining the highest court in the land. Who is qualified to sit on the Supreme Court is a determination made on a nominee by nominee basis by at least 51 US senators.

What do you think? Should a federal judge have minimum qualifications of some sort?

12 comments on “Can a Totally Inexperienced Person Become a Federal Judge?

  1. Avatar for Mary Mock mmock
    Pat Maginnis on

    Wundebar short and sweet concise explanation of qualifications to be a federal judge. I tried over 200 jury trials to verdict in many federal courts around the US. From NYC to Oklahoma to Arizona to Texas to Louisiana to Nevada to Iowa to Illinois to North Dakota to all over the Golden State. Many state cases too in NY and Orange County, Fresno County, SF, Ventura, SD, Riverside, San Bernardino, Mendocino, Sacramento, and 11 published cases. Pressler v Danber Drugs in OC and Kouf v Disney in the Central District before lunatic rocket docket prick Steve Wilson lost on an ill advised Rule 56 summary judgment filed against my client. Granted because the 9th Circuit protects the entertainment industry. The 10th Circuit protects the energy industry–Gerry Spence lost on appeal in Denver the $10 million dollar verdict in the Karen Silkwood case. Sen. Kerr of Kerr-McGee was chairman of Senate Judiciary Committee when judges were appointed. The 2nd Circuit protects the financial industry. The 5th Circuit and 11th Circuits protect Southern racism. De gustibus non disputandum est. De minimis non curat lex. Morituri te salutamus, Caesare!!

    Kouf SJ cost me $5 million. I hate Steve Wilson. I love Sam Conti in SF.
    Came down with tongue cancer from cleaning B52 bombers loaded with Agent Orange, napalm, and I cleaned the bombbays with methyl ethyl ketones. Lost my tongue, jaw, and replaced my jaw with my left fibula due to osteoradionecrosis. All at UCLA Med School. Still no citable proof or admission Agent Orange causes cancer. Hope it comes soon. Ruined my life and career. Gave me PTSD. Made me crazy.
    You have a mailbox in LA as an address.

    Pat Maginnis
    Executive VP Business Development
    Phoenix Group Enterprises LLC
    PO Box 6452
    Malibu, California 90264-6452
    ousoonersocal@aol.com
    310.500.8609

    Good website dialogue but no one can buy biz like Tom Girardi with his “legal judicial” cruises and radio show. Amazing ABOTA marketer.

    Reply
  2. Avatar for Mary Mock mmock
    Cortarius Antwaun McGlothen on

    If the Constitution don’t set any Qualifications for Federal Judgeships then there shouldn’t be any Qualifications for Federal Judgeships

    Reply
  3. Avatar for Mary Mock mmock
    Deborah Watts on

    NoFederal judges should not be required to have any qualifications to become a federal judge or a supreme court justice should not have any requirements

    Reply
  4. Avatar for Mary Mock mmock
    Merrill Gehman on

    I noticed in Anchorage traffic court, the limited driving experiance of officers and judges who are ruling against drivers of all those of experiance, and experianced drivers aren’t even allowed to have a discussion with these people on driving issues, even when they have no case pending. How do these people learn anything new as far as driving issues are concerned without experiance , and without even conversation about driving?

    Reply
  5. Avatar for Mary Mock mmock
    Joseph Carlson on

    All Federal Judgeships should have a basic understanding of Law. There are few Abraham Lincolns today who have the wisdom and knowledge to succeed in that realm with out a law degree.

    Reply
  6. Avatar for Mary Mock mmock
    Recce1 on

    What should be a minimum qualification for a federal judge? Must it be a shingle from a well known law school, or even from Podunk Law School? Must one then pass a state bar exam?

    Could a well rounded true Liberal Arts (CLASSICAL LIBERALISM in the mold of Lockes, Smith, Montesquieu, and Jefferson) education with graduate work in US law history and political science suffice without the LAW degree and a well rounded knowledge of the law and procedures as evidence either by a standardized test or verbal board examination (inquisition?) without going through the bar association tests meet the criteria for qualification?

    What’s more important, book learning or wisdom? Or is BOTH critical.

    Reply
  7. Avatar for Mary Mock mmock
    Anthony Jones on

    Naturally. Because judges as a matter of ethics are supposed to be ‘A’ political, an appointment, not based upon experience an merit, wreaks of political favoritism, rather than by qualifications. In the real world, Judges are indeed, far from blind politically. Hence, why we have “Obama Judges” and Trump Judges, for example. Some if the decisions that have come out of SCOTUS, are so blatantly Unconstitutional, the reasoning so obscure and often even deranged in order to support their personal beliefs, that the idea if leaving precident stand for example, has been nearly impossible. The Supreme Court has become a joke. I used to revere their decisions, until I knew better. On another note, a lifetime appointment is a very bad idea, way too much insulation for a position which affects the lives of people. In general, Federal Judges are arrogant and egotistical. There is no incentive to behave either professionally, equitably or with true integrity. Finally, “walk a mile in my shoes’ ought to be the standard of review as well. A Federal Judge, must be a licensed Attorney, Served on the Federal Bench and a minimum term on the appeals Court. How can a Judge fairly decide cases who has no real world experience in trying cases and or making cautious, thoughtful, legal decisions? They cannot.

    Reply
  8. Avatar for Mary Mock mmock
    Gladys Leebee on

    Yes, definitely he/she should have minimum work experience.
    A lawyer should gain practical trial court experience before becoming a trial court judge, then after gaining significant experience at the trial court level can go on to become an appellate court judge, and then after gaining experience at the appellate court level, can go on to become a supreme court judge (whether state or federal).
    In my estimation, this is HOW it should be in terms of professionalism.

    Reply
  9. Avatar for Mary Mock mmock
    MARYSE SELIT on

    A federal judge should most definitely be a well-qualified trial lawyer and have judicial experience on top of that in order to understand and apply the law appropriately. Constitutional jurisprudence is complex and convoluted and requires legal knowledge and experience in order to be applied fairly to the cases that come before him/her.

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  10. Avatar for Mary Mock mmock
    Masood Khan on

    Yes to me federal judge backtrack history must be checked, his capability,must have degree, a sane and responsible citizen, never involve inmisconduct, well behave, have recommended by good lawer., Unbiased, free to decide without any pressure etc etc

    Reply
  11. Avatar for Mary Mock mmock
    Ben Smith on

    A federal judge should have minimum qualifications, but let let the best be the judge. Should this be voted? Should the bar consider? I have not investigated this, but there should be further screening of a minor sort, and a small qualification that will authenticate what is deemed supreme. Integrity and knowledge are both key. Knowledge should comprise of other key areas without the candidates’ comfort zones. Yet, stringent measures should be set in place to maintain balance and the pursuit of life as people (potential candidates) know it.

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  12. Avatar for Mary Mock mmock
    Kathryn Murphy on

    Duh! All Federal Court nominees should damn well possess a law degree from a top tier law school. At a damn minimum. That is a no brained…….

    Reply

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