The U.S. Constitution specifies that federal judges will be appointed by the President, subject to approval by the U.S. Senate.  It is a partisan exercise; Republican Presidents appoint Republican judges and Democratic Presidents choose members of their own party to fill vacancies.

Everyone understands that.

But the recommendation by Senators Jay Rockefeller and Robert Byrd of Charleston Attorney Nick Casey to fill a vacancy on the federal bench in the northern district of West Virginia has injected an even greater level of politics in the process.

Casey is the state Democratic Party Chairman.  During his tenure he has, as any chairman would, pumped up his party faithful while engaging in the expected hyperbole about the opposition.   Thus the outcry from the state Republican Party about the probability that Casey will soon be asked to serve as an independent arbiter on the bench. 

“I’ve been in conversations with Nick.  I’ve been on TV and radio with Nick before and Nick is about as partisan a guy as I have ever seen,” said state Republican Party Chairman Doug McKinney.  “I don’t think you can take that out of a guy.”

Casey also draws criticism because he is a lobbyist for a variety of organizations at the West Virginia Legislature.  His bio on the website of his law firm (Lewis, Glasser, Casey and Rollins) mentions his experience in “business development matters” and his lobbying efforts “regarding legislation, policies and regulations.”

But there’s no mention of federal court experience.  Casey tells me that’s because he’s spent his legal career doing a variety of things including, in his younger days, trying cases.

“I haven’t spent all my time in one area of anything,” Casey said. 

Casey may turn out to be a decent judge.  But Senators Byrd and Rockefeller must have known that the recommendation of such a recognizable partisan would raise eyebrows, especially when it would be easy to find a loyal Democrat with more judicial experience. 

Do they believe that they can hand over a plum federal judgeship to the state chairman of their own party and not have people question the overt politics of it all?    Can a future federal judge legitimately host the state Democratic Party’s big fund raiser—the Jefferson-Jackson Dinner—next weekend? 

Even some within Casey's own party have questioned privately how Casey could manage to head up the Democratic Party while at the same time lobby for organizations such as the state Chamber of Commerce that have agendas that differ from the party's? 

Interestingly, it’s not the first time the Democratic Party Chairman has been appointed to a federal judgeship.  Joe Bob Goodwin and Chuck Chambers each headed up the party before their appointments.  Each, however, had more courtroom experience than Casey.

Chambers resigned immediatley as party co-chair when he was recommended for a federal judgeship.  Casey should do the same. 

Of course, the spoils are not limited to the Democrats.  For example, U.S. District Judge Tom Johnston has deep ties with GOP politics.  He worked on the campaigns of Congresswoman Shelley Moore Capito and coordinated the Bush-Cheney 2000 campaign in West Virginia. 

“You can’t find any appointment that, at first blush, isn’t overtly political,” Casey told me. 

Coincidentally, this judicial recommendation with such strong political overtones comes at a time when a state panel is considering whether to recommend replacing the public election of West Virginia’s judges with an appointment process.

Those who favor appointment say they want to get the most qualified members of the bar on the court without regard to politics or money.  That all sounds fine, but the credibility of that argument suffers because of the preeminent role politics are playing in Nick Casey’s recommendation.