Rushing to Judgeship

Although voters elect our state judges here in North Carolina, federal judges get their seats via old-fashioned appointment, and just as the state’s elections are getting underway the U.S. Senate is also moving closer to filling a vacancy on the 4th U.S. Circuit Court of Appeals, which hears appeals from the state’s federal courts.

President Donald Trump has nominated Allison Jones Rushing, a partner at Williams & Connolly, for the seat. Rushing, a Hendersonville native who graduated from Wake Forest and Duke Law School, would succeed Raleigh-based Allyson K. Duncan, who is assuming senior status.

Rushing appeared before the Senate Judiciary Committee Oct. 17, although it was a very lightly attended affair—the Senate is in its pre-election recess, and only four Senators, all Republicans, showed up for the hearing. Democrats allege that Republicans are, pardon the pun, “rushing” themselves, trying to get judicial nominees confirmed before an election that may or may not tip the balance of the chamber.

Happily, Rushing’s hearing was devoid of the histrionics surrounding Brett Kavanaugh’s confirmation hearing a few weeks back. The handful of Senators in attendance praised Rushing’s legal acumen, but some raised questions about Rushing’s age—at 36, she would be one of the youngest federal appeals court judges in recent memory—and her experience. Rushing, who graduated from Duke in 2007, said that her experience since then makes her qualified for the bench.

Sidebar, with very good reason, sees absolutely nothing inherently objectionable about tapping a 36-year-old attorney for a very important position like an appellate judge (or the editor of a legal newspaper, let’s say). The number of candles on a candidate’s birthday cake is a very poor proxy for their qualifications.

But federal judges are the only workers in America with an entitlement to remain in their jobs until they die, and this creates a somewhat perverse incentive for any President to try to appoint the youngest candidate he can plausibly get confirmed, all the better to maximum his impact on the judiciary. The surprising thing isn’t that the Senate is vetting a young nominee like Rushing, but that they aren’t asked to do so more often.

Indeed, the idea of appointing judges for life is rather like tricorn hats, or the lyrics to “Yankee Doodle”—what no doubt made perfect sense to a person in the 1780s makes rather little sense today.