The appointment of federal judges, from the 662 U.S. District Court judgeships to the elite nine of the Supreme Court, is a process fraught with politics and all the attendant wheeling and dealing that involves. Knives are placed in backs, favors are returned, and ideological agendas are massaged. But once a person is confirmed to a judgeship in the federal system, he is there for life, free to exercise independent assessment of the facts and apply the appropriate laws regardless of whose ox is gored.
But without lifetime tenure, the game changes dramatically.
For unknown reasons, Congress limits the terms of judges in the U.S. territories to 10 years. All other so-called Article III judges who sit on the Supreme Court, courts of appeals and district courts are on the job for life.
The reappointment, or non-reappointment, of Judge Thomas Moore, who occupies the federal bench in the St. Thomas district, illustrates the perils of limited terms. Under that system, politics will always have the upper hand. While lifetime tenures immunize, theoretically, judges from retribution political or otherwise for decisions they might make that incense powerful people or institutions, limited terms force judges to imagine what consequences may be visited on them when their run is up, which can sully their judicial honesty and raise political issues that have no place in the courtroom.
Moore, 65, was appointed by George Herbert Walker Bush in 1992, but it appears that the former president's son intends to put Moore out to pasture. Moore was not reappointed by George W. Bush when the judge's term expired last year. No one including, apparently, Moore himself knows why. Moore has said that the president "does not believe in reappointing" sitting federal judges in the various territories, but that's as far as any public explanation goes. At any rate, it seems unlikely that the President of United States spends much time musing over policy on the appointment of federal judges in the territories. The whiff of politics is therefore unmistakable.
Reportedly, Assistant U.S. Attorney Curtis Gomez is under consideration to take Moore's seat. Gomez is almost exactly three decades younger than Moore, and while widely regarded as a competent and even brilliant attorney, seems an odd choice to replace the experienced and often courageous Moore.
In the normal selection of district-court judges, the road begins at the state level. Typically, U.S. senators make the initial overtures to the White House. A short often very short list is prepared by the president's staff and finally trimmed down to a single candidate.
The survivor is then "interviewed" and vetted by the Justice Department (specifically, the FBI) and by the Senate Judiciary Committee. The latter process consumes four or five months, at least, and could in some cases take a lot longer depending on what party holds the majority on the judiciary committee and what party is welcome in the Oval Office.
If nothing turns up to be disqualifying, the president nominates the candidate by sending his or her name to the Senate. The judiciary committee holds hearings, and ultimately the full Senate votes on the appointment.
Unlike the much-publicized fuss over Supreme Court nominees and the celebrated soap operas like the Clarence Thomas confirmation hearings, district court judges might appear before the committee in groups of four or five, and are more or less routinely reported out favorably and promptly confirmed by the full Senate.
As for Virgin Islands district courts, not surprisingly, things work a little differently. There are no U.S. senators to deal with in jurisdictions like the Virgin Islands, Guam, the Northern Marianas and others, so the president relies on the recommendations of political committees or prominent elected officials of his party for nominating people for the district-court bench . Since there are currently no Republican politicians in power whatsoever in the territory, the state committee of the Republican Party gets the ball. The irony is that an otherwise effete and ineffectual Virgin Islands Republican Party can muscle through its choices for district judgeships with little in the way of opposition. And that, some say, is precisely what is happening.
According to reliable sources, former Sen. Holland Redfield, a potent force in St. Croix Republican circles and national committee member in the V.I. state party, wrote the president in what one observer referred to as "the anybody-but-Moore" letter. Redfield currently works for Innovative Communications, which is itself owned by St. Croix businessman Jeffery Prosser.
"Prosser didn't like a couple of Moore's rulings that cost Innovative money," a source said. "So he brought out the hatchet."
Redfield termed the rumor "nonsense." He said that his boss "is not involved in national politics."
Redfield did confirm that the St. Croix Republicans support Gomez, but denied any anti-Moore bias. He said that normally the names of people recommended for federal judgeships are not released publicly, since it puts them in the media glare and, should the nominee be rejected in the vetting process it would cast a cloud over his or her reputation. However, Gomez's name has surfaced in both print and radio media locally as having been interviewed by the FBI .
Gomez, a 1989 graduate of Harvard Law School, is a St. Croix native.
Moore will stay on the bench until he is officially replaced by Senate confirmation, which could take a year or more. Should Gomez, reportedly the only candidate to take Moore's place, be rejected either by the Justice Department, the Senate Judiciary Committee or the full Senate, Moore might gain tenure through default. At his age, Moore could become a "senior judge" in the Virgin Islands district, even if someone else is eventually appointed to his seat.
Senior judges who have actually retired but continue to be judges typically handle a much lower case load, but can stay on the bench, should they so choose, for life. They earn their full salaries, and hear cases whenever they and the active judges in the court system wish them to.
In Federalist Paper No. 78, Alexander Hamilton (himself a Virgin Islander) wrote about the need for judicial independence: "If, then, the courts of justice are to be considered as the bulwark of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges, which must be essential to the faithful performance of so arduous a duty."
The limited-tenure system in Hamilton's boyhood home must have the great man spinning in his grave.
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