Photo by afsart on Flickr.

This is part 4 in a series on the legislative history of the 1973 Home Rule Act. See previous parts on the act’s bipartisan support, nonpartisan elections, and the police chief.

While DC’s mayor appoints the District’s CFO, planning director, school chancellor, and despite some debate, the police chief, the mayor does not choose judges for DC’s courts. Instead, the President chooses among 3 nominees from a panel, and the Senate confirms them. However, the Home Rule Act almost gave this power to the mayor and council instead.

In states of the United States, there are 2 parallel court systems: state courts, which hear most cases, and then federal courts, which can only hear cases involving federal laws, including the US Constitution, or lawsuits between people from different states.

Each state government establishes its own state courts.  Appeals from state courts go to higher state courts and up to a state supreme court (which has different names in various states).

Meanwhile, there are federal district courts in each state, whose appeals go up to circuit courts that span multiple states and up to the United States Supreme Court. If you’re on trial for robbery, or if you sue your neighbor for damaging your property, you’re almost certainly in state court; if it’s international smuggling or a patent case (since patents are a federal law and not state or local), you’re probably in federal court.

The DC Superior Court plays the equivalent role to a state court in the District’s judicial system. The court hears the same kinds of civil and criminal cases which go to state courts elsewhere. Appeals go to the DC Court of Appeals.

There’s also a separate federal court for DC, which only hears the same kinds of federal cases as other federal courts, as well as a lot of cases involving the federal government, and a DC Circuit at the appeals level. We’re not talking about the federal courts here at all, just the DC courts which play the same role as a state court.

States either have their governors appoint state court judges, or they elect the judges. In the District, however, the chief executive of DC does not appoint judges. Instead, as with many elements of the DC government, there is a federal-local hybrid process.

A Judicial Nominating Commission of local and federal appointees selects 3 candidates for a judicial vacancy. The President chooses among those candidates to pick a nominee, or can reject them all, in which case the JNC has to pick some more. The Senate then confirms (or doesn’t confirm) the nominee.

The authors of the Home Rule Act got the idea of the JNC from Missouri (p. 1732), which has a similar (but non-federal) commission they felt worked well there and would ensure well-qualified judges. (It seems, overall, to have worked pretty well at that.)

House Republicans changed the appointment from the Mayor to the President

The bill that passed the Senate in 1973, and the version that reached the floor of the House, gave the mayor the power to choose among the candidates from the JNC, and the DC Council the responsibility of confirming them. (1754-1755) On the floor, however, an amendment changed that.

Rep. William Harsha, Jr. (R-OH) proposed changing the original bill to give the President and the Senate the power over judges. (2364) He had the support of Attorney General Elliot Richardson, who would resign that year in the Watergate scandal.

Minority Leader Gerald Ford (R-MI, who would become Vice-President that year and President the following year) supported the amendment. He said,

It seems to me that each one of us from 435 districts each year has a tremendous number of our constituents coming to the Nation’s Capital. I believe that our constituents deserve the kind of judges that would be appointed by the President rather than the kind of judges appointed by a mayor. (2365)


On the other hand, Rep. Henry P. Smith III (R-NY) noted that “if one of [Mr. Ford’s] constituents comes to my home town and is apprehended there, he is tried by a judge elected by my home town people and not a judge elected by the people of the State of Michigan.” (2372)

The subject also came up during the prior Rules Committee meeting that some cities, like New York and Newark, have another municipal court, which handles some violations of city laws; there, mayors appoint the judges. (1765) Overall, though, in the many times it came up during committee deliberations, it seemed members of Congress variously thought of DC as equivalent to a state or as a city.

It acts like a state for many purposes, including judicial, but its chief executive is called a mayor, not a governor, and its legislature at the time bore the name City Council, though the Home Rule Act changed it to the less specific Council of the District of Columbia. A state chief executive appoints judges to state courts (when they’re not elected), but a city chief executive usually does not.

The Harsha amendment passed 228 to 186 with 20 not voting (2376).

Conference committee then switches the JNC

In the House version of the bill, while the Mayor originally held the power of appointment, members of the JNC were mostly federal: 2 chosen by the DC Bar Association, 2 by the Mayor, 1 by the Speaker of the House, 1 by the President of the Senate, and 3 by the President. That’s 5 federal, 2 local, and 2 from the bar, with the clear balance of power on the federal side.

During the debate on the Harsha amendment, Rep. Brock Adams (D-WA) explained that this was intentional: they made the commission mostly federal but put the appointment power in the local sphere.

Once the Harsha amendment passed, the conferees then went and switched around the JNC. They made it comprise 7 members: 2 from the DC Bar, 2 by the Mayor, 1 byt he DC Council, 1 by the Chief Judge of the US District Court for the District of Columbia (the lower federal court), and 1 by the President of the United States. Only 2 of these are federal. (3065-3066)

In other words, since the appointment power had shifted from local to federal, the members flipped the JNC from federal to local. That’s its composition to this day. Rep. Joel Broyhill, (R-VA), one of the main opponents of the Home Rule Act, denounced this change as he wanted to keep both the nomination and appointments powers federal, but the decision had been made and the bill passed with the system we have today.

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David Alpert is the founder of Greater Greater Washington and its board president. He worked as a Product Manager for Google for six years and has lived in the Boston, San Francisco, and New York metro areas in addition to Washington, DC. He lives with his wife and two children in Dupont Circle.