IF YOU look it up in the law books, or even in a civics book, you will be told that federal judges in this country are appointed by the president with the advice and consent of the Senate. We learned that, we think, in Junior high. Of course, we learned later that there is something called 'Senatorial courtesy' that changes the game and leaves unclear exactly who does what in this process. Now some of the outgoing officials of the Justice Department have described in writing what this thing called "Senatorial courtesy" is. It is, they say, "a veiled selection process that is heavily political and grounded in outdated notions of senatorial patronage."
Attorney General Griffin Bell is aware of the problem. He went so far as to say, during his confirmation hearings, that senators "appoint" judges. He didn't misspeak; he intended to say that. And he went on to elaborate his hope that he can persuade some senators to appoint better ones.
Can it be done? Senatorial courtesy, which started out as a mechanism to give a senator veto power over appointments made in his own state, had grown into a monster. Many senators, in fact, do dictate to the President who will become judges and federal attorneys back home. We remember one absolutely atrocious judicial appointment made by President Kennedy. It was explained to us by an acute observer as an appointment made so a particular senator could demonstrate his power. "Any senator can get a good judge appointed," he said. "But it takes a really powerful one to get so bad a judge appointed."
While we admire Attorney General Bell for telling the Senate committee he wants to end this practice, we do not envy him the job of trying to do it. He said he planned to create judicial nominating commissions to recommend circuit judges, to try to persude individual senators to create similar commissions to recommend district judges, and to use a merit system in picking U.S. attorneys. Some senators have been quick to endorse abusers of senatorial courtesy, anyway. Others, apparently, have objected strongly and this has delayed even the naming of commissions at the circuit court level.
Maybe the way to proceed is that suggested by the outgoing administration. President Carter could name a commission on the appointment process and direct it to give the public an even clearer look at what has actuallly been going on under cover of that innocuous sounding "courtesy."