Several federal laws and constitutional provisions govern appointments to the U.S. judiciary. Here’s a clear outline of the main ones:
I. Constitutional Foundation
Article II, Section 2, Clause 2 — “Appointments Clause”
- Text: The President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court, and all other Officers of the United States.”
- Effect: Gives the President power to nominate judges.
- Requires Senate confirmation for appointments.
- Establishes the basic legal framework for judicial appointments.
Article III, Section 1
- Creates the Supreme Court and authorizes Congress to establish inferior courts.
- Judges “shall hold their offices during good behaviour,” meaning life tenure unless impeached.
- Guarantees salaries cannot be reduced while in office.
II. Federal Statutes Affecting Judicial Appointments
Judiciary Act of 1789 (1 Stat. 73)
- Created the first system of lower federal courts.
- Gave the President authority to appoint district and circuit judges with Senate approval.
- Established the structure still used as the foundation for today’s judiciary.
Judiciary Act of 1869 (16 Stat. 44)
- Fixed the number of Supreme Court justices at nine.
- Created separate circuit judgeships, ending the old system where Supreme Court justices “rode circuit.”
- Presidents appoint these circuit judges under Article II procedures.
Judicial Improvements Act of 1990 (Pub. L. 101–650)
- Authorized new federal judgeships to handle increased caseloads.
- Reaffirmed that all such judges are appointed by the President and confirmed by the Senate.
- 28 U.S.C. §§ 44, 133, 134, and 291–296 (Title 28 of the U.S. Code — Judiciary and Judicial Procedure)
- Define the organization and number of judges on each court.
- Specify the process for temporary and senior judge assignments, but not appointment procedures (those remain under Article II).
Federal Vacancies Reform Act of 1998 (5 U.S.C. §§ 3345–3349d)
- Governs temporary service in positions requiring Senate confirmation (including judicial nominations awaiting confirmation).
- Judicial Nominations and Confirmations Process (Senate Rules & Statutes)
- While much of the confirmation process is governed by Senate rules, some statutes (like the Ethics in Government Act, 5 U.S.C. app.) require background checks and financial disclosures before confirmation.
III. Special Appointment Provisions
Magistrate Judges (28 U.S.C. §§ 631–639)
- Appointed by district judges, not the President.
- Serve renewable eight-year terms.
- Bankruptcy Judges (28 U.S.C. §§ 151–159)
- Appointed by U.S. Courts of Appeals for 14-year terms.
- Not Article III judges; they lack life tenure.
Temporary or Recess Appointments (Article II, Section 2, Clause 3)
- Allows the President to make recess appointments to fill judicial vacancies when the Senate is not in session.
- Such appointments expire at the end of the next Senate session unless confirmed.
