Analysis of Historical Data Published By JNC Provides Perspective on Nominations to D.C. Courts

ByDouglas C. Melcher

On October 31, 2011, the Judicial Nomination Commission (“JNC”) published historical data regarding, inter alia, its recommendations of attorneys to serve as Associate Judges on the District of Columbia Court of Appeals and the Superior Court of the District of Columbia. This article discusses my analysis of some of that data.

By way of background, the JNC is responsible for recommending to the President of the United States qualified attorneys to serve as Associate Judges on the Court of Appeals and the Superior Court and for designating the Chief Judge of each of those courts from among the Associate Judges of each court. With respect to the JNC’s role in recommending attorneys to serve as Associate Judges, the JNC recommends to the President a panel of three attorneys for each vacancy. The President then has sixty days to nominate one of the attorneys recommended by the JNC to fill the vacancy. The nominee must then be confirmed by the United States Senate before being appointed by the President. Associate Judges are appointed to serve a term of fifteen years. Eight Associate Judges and one Chief Judge serve on the Court of Appeals, and sixty-one Associate Judges and one Chief Judge serve on the Superior Court.

With respect to the Court of Appeals, my analysis of the historical data published by the JNC indicates that, during the thirty-five-year period from January 1, 1976 to December 31, 2010:

  • the JNC recommended a panel of attorneys to fill a vacancy on the Court of Appeals on twenty-one occasions or, on average, three times every five years;
  • the JNC recommended a panel of attorneys to fill a vacancy on the Court of Appeals not more than two times in any given year, with no vacancies to fill during seventeen of thirty-five years including a five-year period without vacancies from 1999 to 2003;
  • of the twenty-one vacancies on the Court of Appeals, eighteen resulted from retirements, two resulted from appointments to the federal judiciary, and one resulted from death while in office;
  • the nominations of three attorneys to the Court of Appeals were returned to the President by the United States Senate and one of those attorneys was subsequently re-nominated, confirmed, and appointed; and
  • not more than five judges were appointed to the Court of Appeals by any one President.

The foregoing information helps to put in perspective how extraordinary 2011 has been with respect to vacancies on the Court of Appeals. During 2011, the JNC has been called upon to make recommendations to fill three vacancies on the Court of Appeals — more vacancies than during any single year from 1976 through 2010 and representing a turnover of one-third of the Court of Appeals’ active judges (not including senior judges). Having three vacancies on the Court of Appeals in one year is even more extraordinary when considering that there were no vacancies to fill during seventeen of the thirty-five preceding years.

With respect to the Superior Court, my analysis of the historical data published by the JNC indicates that, during the fifteen-year period from January 1, 1996 to December 31, 2010:

  • the JNC recommended a panel of attorneys to fill a vacancy on the Superior Court on forty-four occasions or, on average, approximately three times per year;
  • the JNC recommended a panel of attorneys to fill a vacancy on the Superior Court anywhere from zero to six times in any given year, with no vacancies to fill in just one year (2007), only one vacancy to fill in just one year (2006), and six vacancies to fill in just one year (2010) (in all other years there were anywhere from two to five vacancies);
  • of the forty-four vacancies on the Superior Court, thirty-three resulted from retirements, three resulted from federal legislation expanding the Superior Court (in 2002), three resulted from appointments to the Court of Appeals, four resulted from appointments to the federal judiciary, and one resulted from death while in office;
  • the nominations of twelve attorneys to the Superior Court were returned to the President by the United States Senate and nine of those attorneys were subsequently re-nominated, confirmed, and appointed; and
  • one nomination was withdrawn but the nominee was subsequently re-nominated, confirmed, and appointed to fill another vacancy.

One nomination resulting from a vacancy on the Superior Court which opened in 2010 remains pending before the United States Senate. In 2011, the JNC was called upon to make recommendations to fill four vacancies on the Superior Court.

Douglas C. Melcher

I am a licensed attorney with about twenty years of experience in the private practice of law. I focus my practice on advising and representing individuals, small businesses, and non-profits in civil litigation, including trial court proceedings, appeals, administrative hearings, mediation, and arbitration. I have written numerous articles for D.C. Law Blog and other publications, and am the author of Tort Claims and Defenses in the District of Columbia, which is a handbook for lawyers about civil claims for injury to persons, property, reputation, and commercial interests. Please feel free to contact me if you would like to inquire about assistance with a legal matter. I can be reached at dmelcher@melcherlaw.com or 202-427-5753. For further information about my background, click here.