The
Senate and Judicial Nominations
Sheldon
Goldman
University
of Massachusetts, Amherst
Individual
senators and the Senate institutionally play important roles in
determining the makeup of the federal judiciary. Traditionally,
individual senators, particularly those of the president's party from
the state where there is a judicial vacancy, have had great influence on
presidential administrations in the selection of federal district court
judges. This has been less so for the
filling of vacancies on the appeals courts and least for the filling of
Supreme Court positions (Goldman 1997, Abraham 1999, Yalof, 1999,
Gerhardt 2000).
Institutionally,
the Senate is required by the U.S. Constitution to give its advice and
consent that in practice has meant confirmation by a simple majority of
those present and voting on the Senate floor. Historically,
a large majority of all judicial nominations from the Supreme Court
down the judicial hierarchy to the appeals courts and district courts
have been routinely confirmed (Harris, 1953). But
over the past two decades there has been a slow but steady erosion of
the routineness of the process. Although
the large majority of nominees are confirmed (Goldman 2003a), for many
nominees the process has become an obstacle course. The
unprecedented use of the filibuster to prevent confirmation during the
108th Congress, although used only against a small number of appeals
court nominees, has nevertheless colored the current debate on the
confirmation process in crisis hues.
I
will first look at judicial selection and confirmation with regard to
the Supreme Court and then the lower federal courts. I
will also examine quantitative indicators of obstruction and delay
followed by my suggestions for reform.
The Supreme Court
During
the course of American history, nominations to fill vacancies on the
Supreme Court typically have been tendered to respected lawyers and
judges of the president's party who share the president's ideological,
philosophical, and/or partisan orientation (in general see Abraham
1999). Over 9 out of 10 appointees to the Supreme Court have been
members of the president's party.
When
Court decisions are seen by a president as important for his agenda,
ideology will be a major variable in the selection process. President
Franklin D. Roosevelt named to the Supreme Court supporters of the New
Deal. President Ronald Reagan and his
immediate successor George Bush sought to appoint conservatives. President George W. Bush has said he would
like to appoint justices in the mold of Antonin Scalia and Clarence
Thomas (Bumiller 2002), who along with Chief Justice William Rehnquist
occupy the most conservative wing of the Court.
Historically,
there has been geographic representation on the Court, a tradition
dating back to the practice of Supreme Court justices literally riding
the circuit to sit as circuit judges (a practice lasting through a large
part of the nineteenth century). In modern
times, every major section of the country has been "represented" on the
Supreme Court. When President Richard M.
Nixon sought to fill the vacancy created by Justice Abe Fortas's
resignation from the Court in 1969, he nominated first one southerner,
Clement Haynsworth, who was rejected by the Senate and then another
southerner, G. Harrold Carswell, who also met defeat on the Senate floor. Although failing to replace Fortas with a
southerner, Nixon eventually succeeded in placing a southerner on the
bench, Lewis Powell of Virginia. Interestingly,
Powell's would-be and then eventual replacement were not southerners. Unless Clarence Thomas is considered a
southerner, which he was by birth and childhood but not adult residency,
the South has not been represented on the Court since 1987. This
fact may play a part in George W. Bush's selection process if he has an
appointment opportunity.
There
is some evidence that religious, ethnic, and gender considerations have
played or continue to play a part in the selection of Supreme Court
justices (Perry 1991). In the presidential
election campaign of 1980, both major party candidates pledged to
appoint a woman to the Court. Ronald Reagan
kept his word when in 1981 he appointed the first woman, Sandra Day
O'Connor, to the Court. President Bill
Clinton's first of two appointments went to a woman, Ruth Bader
Ginsburg, in 1993. Thus, it is clear that
gender representation on the Court is now a given. So,
too, with African American representation. President
Lyndon Johnson named Thurgood Marshall in 1967 and when Marshall
retired in 1991 President George Bush named Clarence Thomas. The absence of Hispanic American
representation is expected to end with the filling of the next vacancy
regardless of who sits in the White House. If
George W. Bush has the opportunity to make the appointment and names a
Hispanic who is seen by Democratic senators as a conservative activist,
they will undoubtedly wage a spirited fight to bloc confirmation despite
what would be the historic nature of the appointment.
Historically,
a significant proportion of Supreme Court nominees have been challenged
in the Senate usually for ideological or partisan reasons (Abraham 1999,
Gerhardt 2000). In the nineteenth century,
close to one out of three nominees went unconfirmed by the Senate. In the first two-thirds of the twentieth
century, only one Supreme Court nominee was rejected (President Herbert
Hoover's nomination of Fourth Circuit Judge John J. Parker). But since
1968 there have been four Senate rejections with three of the four
occurring in the 1968-1970 period (in general see Massaro 1990,
Silverstein 1994, Watson and Stookey 1995, Maltese 1995, Yalof 1999,
Comiskey 2004).
It
has not been unusual for a president to sound out members of the Senate
Judiciary Committee and/or the leadership of both parties of the Senate
to gauge probable senatorial reaction (Yalof 1999). In
fact, this is what President Lyndon Johnson had done before nominating
Justice Fortas for the chief justiceship in 1968. Republican
Senate Minority Leader Everett Dirksen offered no objection and Johnson
went ahead. But junior Republican senators
and conservative southern Democrats were unhappy with Fortas whom they
saw as a liberal activist, and they waged a filibuster that withstood a
cloture vote (this would provide a precedent for Democrats some
thirty-five years later when opposing several Bush nominees to the
appeals courts). Fortas subsequently
withdrew his name for elevation (for details of the complex story see
Murphy 1988 chapters 11-23).
The
following year newly elected Richard Nixon exploited a media attack on
an ethical lapse by Justice Abe Fortas and succeeded in pressuring him
to resign thus creating a vacancy for Nixon to fill (Murphy 1988, chap.
24). The chair of the Senate Judiciary
Committee was a conservative southern Democrat, James O. Eastland from
Mississippi, who supported Nixon's choice of Fourth Circuit Judge
Clement Haynsworth to replace Fortas. But
most Democrats were unhappy with Haynsworth's conservatism and when
seemingly ethical lapses were discovered Haynsworth was ultimately
defeated on the floor of the Senate. So,
too, was G. Harrold Carswell, an undistinguished Fifth Circuit appeals
court judge with a history of racism whose nomination was seen by some
Democrats as an affront to the Senate (in general see Massaro 1990 and
Maltese 1995). The third attempt to fill
the vacancy was successful with Harry Blackmun winning overwhelming
support.
There
is no evidence that President Ronald Reagan consulted with the
Democratic leadership of the Senate in 1987 prior to the nomination of
District of Columbia Appeals court Judge Robert Bork to fill the vacancy
caused by the retirement of Lewis Powell. Reagan
administration officials might have reasoned that since Bork had been
confirmed for his position on the Court of Appeals only several years
earlier, he would be confirmed for a seat on the Supreme Court. But Bork was defeated in the Senate because
liberal and moderate senators saw him as a right-wing extremist who
refused to recognize a constitutional Right to Privacy including the
right of a woman to determine whether or not to abort her pregnancy
during her first two trimesters. The fight
over Bork was particularly contentious and the Republican minority in
the Senate was extremely bitter about the tactics of their Democratic
colleagues and their interest group allies (in general see Gitenstein
1992). The very public involvement of
interest groups in the Bork fight can be seen as a turning point in
contemporary confirmation politics. Although,
on occasion, interest or advocacy groups had been involved before in a
relative handful of nominations, after the Bork fight these groups
became more systematically involved in the process for appointments at
all levels of the judiciary, inserting themselves into the nomination
and confirmation processes by lobbying and rallying supporters for and
against certain nominees (Simon 1992, Gerhardt 2000, Bell 2002, Comiskey
2004, Scherer 2003 and forthcoming).
After
Bork's defeat by a vote of only 42 votes for and 58 votes against
confirmation, President Reagan announced that he would nominate another
appellate judge from the District of Columbia circuit, Douglas Ginsburg.
But this would-be nomination was scuttled before being sent to the
Senate after the press ran stories that Ginsburg had smoked marijuana. The president turned to a more moderate
conservative, Ninth Circuit Appeals Court Judge Anthony Kennedy, who was
easily confirmed.
The
first president Bush, working with a Democratic Congress as did
President Reagan in his last two years in office, aimed to place on the
bench at all levels the most conservative judges who were confirmable. President Bush correctly saw David Souter as
easily confirmable but incorrectly assumed that Souter's conservative
background as a New Hampshire Supreme Court Justice and briefly as a
judge on the federal First Circuit Court of Appeals would assure his
joining the Rehnquist-Scalia wing of the Court. Bush's
nomination of the second African American named to the Court to replace
the first also seemed to be designed to win confirmation. Although
Clarence Thomas's conservatism was expected to raise some controversy,
no one in the administration had any inkling that sexual harassment
charges would surface and turn an already contentious confirmation
battle into a melee (Comiskey 2004, chap. 5; Mayer and Abramson 1994;
Phelps and Winternitz 1992; Simon 1992). At
first there was considerable debate over Thomas's extreme conservatism
coupled with his relatively thin resume. Then explosive sexual
harassment charges propelled the nomination to a new level of contention. The nationally televised hearings on the
Thomas nomination riveted the nation with its emphasis on sex and the
nomination appeared in grave jeopardy. Eventually
Thomas was confirmed by a bare majority of 52 votes.
President
Bill Clinton took great pains when filling vacancies created by the
retirements of Byron White and Harry Blackmun to select noncontroversial
candidates who could be easily confirmed. He
scrupulously consulted key Republican leaders (Hatch 2002, p. 180). His strategy was successful and his
nominations of Ruth Bader Ginsburg in 1993 and Stephen Bryer in 1994
were confirmed by overwhelming majorities. Furthermore,
during its last six years the Clinton administration routinely checked
with Senate Judiciary Committee Chair Orrin Hatch before nominating
lower court judges. The administration avoided nominating anyone that
appeared to be controversial. Even so, a
number of Clinton's lower court nominees ran into trouble with the
Republican Senate (in general, see Goldman
and Slotnick 1997, 1999; Goldman, Slotnick, Gryski & Zuk 2001).
As
of early 2004, President George W. Bush has not had an opportunity to
name a justice of the Supreme Court. There
has been ongoing speculation as to whom he might nominate and the
possible difficulty of the confirmation process. The successful
Democratic filibusters in 2003 and 2004 of at least six appeals court
nominees is seen by some as a dress rehearsal for a coming battle over a
Bush nominee to the Supreme Court assuming that the nominee is seen as a
conservative activist. If that nominee is
also Hispanic that may well complicate the battle. Senators
from states with large Hispanic populations will no doubt be under
pressure to vote to confirm. If Bush is
reelected by a clear majority and brings with him more Republican
senators than are now in the Senate, it will be more difficult to
sustain a filibuster and easier to vote cloture. The presidential
election of 2004 may well go down in history as one of the most
important ones for determining the direction of the Supreme Court and
the fate of a number of civil liberties precedents that are anathema to
the current president and his core supporters. Yet,
whoever is elected president in 2004 would be wise to pay heed to the
conclusions drawn from an extensive statistical analysis of Senate
roll-call votes on Supreme Court nominations from Earl Warren to Anthony
Kennedy:
"When a strong president
nominates a highly qualified, ideologically moderate candidate, the
nominee passes the Senate in a lopsided, consensual vote. . . . When
presidents nominate a less well qualified, ideologically extreme
candidate, especially when the president is in a weak position, then a
conflictual vote is likely." (Cameron, Cover, and Segal 1990, p. 532 as
cited in Carp, Stidham and Manning 2004, p.135)
The Lower Federal Courts
Appointment
to the lower federal courts involves senators not only at the
confirmation stage but also with the nomination process (this paragraph
is based on findings from: Grossman 1965, Chase 1972, McFeeley 1987,
O'Brien 1988, Goldman 1997, Gerhardt 2000). There
are numerous participants at the nomination stage and they include: (1)
the president and the office of the White House counsel; (2) officials
in the Justice Department -- historically in the attorney general or
deputy attorney general's office but more recently out of a special
office created by President Ronald Reagan, the Office of Legal Policy
(renamed the Office of Policy Development by Bush Sr. but
restored to the original name by Bush Jr.); (3) the senators of the
president's party from the state where the potential nominee resides,
and, if established, a selection commission sponsored by the senators to
screen candidates for the federal district courts; (4) the chair of the
Senate Judiciary Committee who in recent years has been consulted or
informed before nominations are made; (5) members of the House of
Representatives from the president's party from the state where the
judicial vacancy is to be filled (when there are no senators from the
president's party); (6) other party leaders from the president's party
including governors and/or mayors of large cities from the state
"receiving" the nomination (again where there are no senators from the
president's party); (7) advocacy or interest groups that represent the
president's core constituency; (8) the American Bar Association's
Standing Committee on Federal Judiciary, particularly its chairperson
(this was true from the presidency of President Dwight D. Eisenhower
until the presidency of George W. Bush who discontinued
the role of the ABA Committee in the nomination process, a role that
may well be reinstituted by a new administration); and (9) those who
aspire to federal judgeships (and their supporters among the bar and
bench) who campaign for a position by contacting the president, their
home-state senators and other state party leaders.
The
nomination of any one judge is the culmination of a unique series of
interrelated events that propel one person and not another toward the
nomination. Understanding any one
particular nomination requires access to a myriad of confidential
sources. No one appointment can be
adequately understood without study of the unique transactions involved
(Danelski 1964).
A
candidate who has strong home state senatorial backing and the support
(or at least no opposition) from state party leaders will typically have
the inside track for the nomination. Before
W. Bush's presidency, the ABA Committee rated the leading contender or
contenders for the nomination (the names were provided by Justice
officials). Usually (but not always) when
the committee indicated that the candidate was not professionally
qualified, the prospective nomination
was doomed. Although President George W.
Bush eliminated the ABA from the pre-nomination process, the committee
has continued to rate each nominee after the nomination has been
announced and sent to the Senate. The
administration, like others before it, evaluates potential nominees in
terms of its standards of competency and judicial philosophy. When there is no consensus as to the nominee
for a particular judgeship, justice and White House officials must
engage in negotiations with home-state senators and/or party leaders of
the president's party.
The
Reagan and G.H.W. Bush administrations were particularly concerned with
judicial philosophy and screening out from contention those who did not
share the president's judicial philosophy (for examples from
presidential papers see Goldman 2003b, pp. 697-703; also see Schwartz
1988). The Reagan and especially the Bush
administrations were also concerned with gender and ethnic
diversification of the bench. President
George W. Bush has continued along these lines and has been seen as
being even more aggressive in the recruitment of judges philosophically
compatible with the administration (Goldman, Slotnick, Gruski, Zuk and
Schiavoni 2003). This has set the stage for
contemporary confirmation fights.
Beginning
with the Carter administration, White House involvement in judicial
selection through the Office of the White House Counsel became
established (Goldman 1997, chap. 7). That
office became increasingly involved with negotiations with senators that
by the Clinton administration typically meant that the White House
Counsel's office did the major negotiations with senators. The
president's Committee on Judicial Selection, a joint White
House-Justice Department committee chaired by the White House Counsel,
was an innovation of the Reagan administration. The
committee's task has been to oversee the politics of each judicial
nomination including negotiations with senators. Reagan, Clinton, Bush
41, and Bush 43 have utilized the committee and it appears to be a
permanent judicial selection institution.
It
is, of course, at the confirmation stage that senatorial involvement is
at its peak. Once a nomination is sent to
the Senate it is referred to the Senate Judiciary Committee. Then, as a matter of routine, the chair of the
committee sends "blue slips" to the senators from the nominee's state. The "blue slip" is a form that officially
notifies the senators that the nomination has been received. The form has a space for the senator's reply. It also contains the caveat: "Under a rule of
the Committee, unless a reply is received from you within a week from
this date, it will be assumed that you have no objection to the
nomination." In practice, before 1979, a senator who opposed the nominee
from his or her state would quietly inform the chair and withhold the
blue slip. The nomination would not be
acted on by the committee and would be, in effect, killed (Denning 2002). When Senator Edward Kennedy became chair in 1979,
In
1981, when Republicans took control of the Senate, Strom Thurmond
became chair and indicated he would be more sympathetic to his
senatorial colleagues. When the Senate shifted to Democratic hands in
1987, Joseph Biden became chair and suggested that he, too, would abide
by the blue slip tradition. The Senate
turned Republican with the election of 1994 and Orrin Hatch took over
leadership of the committee, a post he retains as of this writing (when
Senator Jeffords left the Republican caucus in 2001, the chair position
reverted to Senator Patrick Leahy but after the 2002 election went back
to Hatch). Faced with some Democratic
senators opposing some Bush nominees from their states and withholding
blue slips or returning them indicating opposition, Senator Hatch
announced he would return to the Kennedy policy. This produced a great
outcry from Democrats on the committee who understood the Kennedy policy
as one designed to prevent a senator from killing a nomination on racist
or sexist grounds and not on the ability of the nominee to render fair
and impartial justice (Goldman 1997, p. 263).
When
Senator Kennedy became chair of the Senate Judiciary Committee in 1979,
he established an investigatory staff for the committee to examine the
backgrounds and professional records of the nominees so that the
committee would not have to rely on the Justice Department. Kennedy's
successor as chair, Senator Thurmond, continued the practice and to
this day there are Democratic and Republican investigatory staffs. These staffs may work with advocacy groups and
may target certain nominees. This appears
to have happened in the 1990s with conservative groups opposing some
Clinton nominees and more recently with liberal groups opposing some
Bush nominees (Goldman 2003b, pp. 717-718, AP 2004).
In
terms of the confirmation process historically, and in general even
today, when senators of the president's party from whose state the
nominee comes approves the nomination and neither the majority nor
minority investigative staffs come up with negative findings, the
Judiciary Committee typically votes to recommend confirmation and sends
the nomination to the floor of the Senate. Occasionally one or more
senators may voice opposition to a nomination on the Senate floor but
typically the Senate votes to confirm a nominee recommended by the
committee. Once the nomination is
confirmed, the president signs the appointment documents, the individual
is sworn into office and begins serving on the federal bench. Yet the confirmation process has been much in
the news for close to a decade with Democrats and Republicans accusing
each other of obstruction and delay of judicial nominees. The
well-publicized filibusters by Democratic senators in 2003 and 2004 of
several Bush nominees to the appeals courts suggest that the
confirmation process may not be working well. We turn our attention to
this very issue.
Obstruction and Delay in
the Confirmation Process
To
understand why the confirmation process has become more contentious, we
need to recognize that the trend in judicial selection has been to move
away from primarily patronage concerns to concerns about furthering the
president's policy agenda through judicial appointments (Goldman 1997,
Scherer 2003 and forthcoming). Since
the 1980s, senators have felt free to oppose judicial nominees on policy
and judicial philosophical grounds. Most of
that opposition, when it has occurred, has centered around nominees to
the courts of appeals. This was true during
the last six years of the Clinton presidency when some Republican
senators opposed and either delayed or killed some nominations. And it has been true with Democratic senators
during the presidency of George W. Bush.
For
the courts of appeals during the last six years of the Clinton
presidency, eight nominees waited more than one year from nomination to
confirmation. Another 36 nominees went
unconfirmed, 28 of whom did not even receive hearings. A total of 43
nominees were confirmed for a confirmation rate of 54.4% (these figures,
like all of the figures in this section, are for lifetime appointments
to courts of general jurisdiction). For the
district courts 14 nominees waited over one year from nomination to
confirmation while 64 never made it through confirmation (48 of whom had
no hearings). A total of 198 were confirmed
for a confirmation rate of 75.6%.
For
the first two years of the George W. Bush presidency, with Democrats in
control of the Senate for much of the 107th Congress, it took on average
more than nine months to confirm 16 nominees to the appeals courts while
15 remained unconfirmed (12 of whom received no hearings). The
confirmation rate for courts of appeals nominees was 51.6%. For the district courts, it took longer than
six months for 16 to be confirmed while 15 had no hearings. A
total of 83 were confirmed to the district courts for a confirmation
rate of 84.7%.
Republicans
regained control of the Senate with the election of 2002 and the
figures during the first session of the 108th Congress reveal that 13
nominees to the appeals courts were confirmed but an additional 19 were
unconfirmed (with 10 not having had hearings). The
confirmation rate was 40.6%. For the
district courts, 55 nominees were confirmed but 27 went unconfirmed (17
of whom received no hearings). The
confirmation rate was 67%. The proportions
are considerably lower than for the 107th Congress but might be
explained by the several late-in-the session nominations.
In
opposing the Bush nominees, Democratic senators have suggested that
their concern is that George W. Bush, like his father and Ronald Reagan
before him, is trying to pack the courts with conservative activists. Such judges, among other concerns, would
undermine the rights of women in consultation with their physicians to
make medical decisions concerning unwanted pregnancies, weaken the
separation of church and state, dilute the rights guaranteed in the Bill
of Rights to those accused of crimes, be unsympathetic to the rights of
workers and organized labor, weaken the laws and regulations meant to
protect the environment, and compromise gender and racial equality
(Goldman 2003b, p. 704).
Republicans
counter that it is neither the business of judges to create rights nor
to go beyond the intent of the framers. They
contend that liberal judicial activists overlook compelling competing
values such as states rights and federalism, the right of a fetus to
life, the guarantee of the free exercise of religion, the rights of
victims of crimes, the rights of those who own property, and the right
to be treated fairly and not be discriminated against by ethnic and
gender preference programs (Goldman 2003b, p. 705).
Ideological
warfare between liberal and conservative senators, fueled by advocacy
groups since the late 1980s, was especially severe when there was
divided government with the White House controlled by one party and the
Senate by the other. Democrats were
particularly resentful at how President Clinton's nominees were treated
during the last six years of his presidency when Republicans controlled
the Senate. Republicans, in turn, were
resentful when Democrats controlled the Senate during the 107th Congress
and are furious now that, even with Republican control of the Senate,
the Democrats have successfully filibustered the appeals court
nominations of Miguel Estrada (who subsequently withdrew his candidacy),
Charles Pickering (who was subsequently given a recess appointment by
President Bush on January 16, 2004), Priscilla Owen, William Pryor
(subsequently given a recess appointment on February 20, 2004), Janice
R. Brown, and Carolyn Kuhl and have held up the three nominees from
Michigan to the Sixth Circuit.
The
portrait given thus far suggests that the confirmation process has
deteriorated in recent years and that the return to unified government
may not have improved the situation (in general see Binder and Maltzman
2002; Hartley and Holmes 2002; Martinek, Kemper and Van Winkle 2002). An objective summary statistic of
obstruction and delay is needed to get a better grasp of what actually
has been occurring. Toward that end I have
devised an objective summary indicator, the Index of Obstruction and
Delay (Goldman 2003a, 2003b) and present the findings in Table One for
the district and appeals courts from the 95th Congress through the 108th
Congress, first session.
|
Table One: Index of
Obstruction and Delay in the Senate Processing of
District and Appeals Court Nominees
|
|||
|
Congress |
Years |
District
Court Index |
Appeals
Court Index |
|
95th |
(1977-1978) |
0.0000 |
0.0000 |
|
96th |
(1979-1980) |
0.0750 |
0.0682 |
|
97th |
(1981-1982) |
0.0000 |
0.0000 |
|
98th |
(1983-1984) |
0.0545 |
0.1429 |
|
99th |
(1985-1986) |
0.1364 |
0.0690 |
|
100th |
(1987-1988) |
0.2800 |
0.4762 |
|
101st |
(1989-1990) |
0.0488 |
0.0625 |
|
102nd |
(1991-1992) |
0.3465 |
0.5000 |
|
103rd |
(1993-1994) |
0.0375 |
0.0625 |
|
104th |
(1995-1996) |
0.3780 |
0.5263 |
|
105th |
(1997-1998) |
0.5000 |
0.6932 |
|
106th |
(1999-2000) |
0.4722 |
0.7931 |
|
107th |
(2001-2002) |
0.2432 |
0.8387 |
|
108th, 1st
Sess. |
(2003) |
0.2308 |
0.5600 |
Obstruction
is defined when no action is taken on a nomination to confirm or reject. Delay is defined as taking more than 180 days
from nomination to confirmation. The index
is determined by the number of nominees who remained unconfirmed at the
end of the Congress added to the number for whom the confirmation
process took more than 180 days which is then divided by the total
number of nominees for that Congress. When
the Senate remained in control by the same party in the subsequent
Congress, a renominated individual had the date of the original
nomination counted in the calculation of delay. Also
nominations made after July 1 of the second session of each Congress
(and also for the first session of the 108th Congress) were not included
in the calculations so as not to inflate the index artificially on
account of end-of-second-session nominations that realistically would
not ordinarily be able to move through the process under an
approximately 180 day time frame. The Index
is calculated to four places to the right of the decimal point and thus
ranges from 0.0000, which indicates an absence of obstruction and delay,
to 1.0000, which indicates the maximum level.
As
suggested in Table One, for the district courts, there were low levels
of obstruction and delay until the 100th Congress and that was followed
by a further increase in the 102nd Congress. The
same was true for the appeals courts during the 100th and 102nd
Congresses whose indexes were even higher than those for the district
courts. Since the Senate of these
Congresses was controlled by the Democrats with a Republican in the
White House, the Republicans' charge that the Democrats were responsible
for initiating the obstruction and delay phenomenon is supported by the
objective evidence. But with the situation reversed with a Democrat in
the White House and the Republicans in control of the Senate, the
evidence clearly shows that the Republicans ratcheted up obstruction and
delay with all-time records for the district and appeals courts
including the then unprecedented index of 0.8125 for appeals court
nominees by the 106th Congress. Also it
should be noted that in every even-numbered Congress (with one exception
for the district courts for the 106th Congress), which always overlaps a
presidential election year, the index was higher than for the previous
non-presidential year Congress.
The
Democrats assumed control of the Senate after the first five months of
the 107th Congress with now a Republican in the White House and the
Index for the appeals courts reached its highest point for the period
analyzed -- 0.8387. However, the Index for
the district courts dropped significantly from the 104th-106th
Congresses and was even lower than that for the 102nd Congress. This appeared to reflect a decision of the
Democrats to focus their attention on the appeals courts and to readily
expedite almost all of Bush's district court nominees.
With
the Republicans once again in control of the Senate in 2003 and with a
Republican still in the White House, we might have expected sharp drops
in the index. For the 108th Congress, first
session, the index for the appeals court nominees did indeed fall --
from 0.8387 to 0.5600 -- but the index nevertheless was the highest ever
for unified government (at least from the 95th Congress to the present). This undoubtedly reflects the efforts by the
Democrats to use whatever means they have at their disposal including
filibusters to obstruct and delay the confirmation process of primarily
nominees whom they find objectionable. On the
other hand, the index for district court nominees fell slightly from the
107th Congress to 0.2308, but this too was the highest for unified
government (from the 95th Congress to the present). Part
of the problem for the district court nominees seems to be related to
the elimination of the American Bar Association from the pre-nomination
process, resulting in the nomination of a few unqualified (by ABA
standards) nominees (of the 10 nominees obstructed, 3 were rated "not
qualified"; these were the only nominees in the 108th Congress, first
session, so rated). It does not bode
well for the confirmation process that the indexes for the first session
of the 108th Congress were so relatively high. Divided government had
previously been associated with high indexes. But
if obstruction and delay becomes more common under unified government,
that could turn what once was a relatively civilized and functional
process into what has increasingly become an unpleasant, prolonged, and
dysfunctional process.
Is there anything that can be
done?
Proposals for Reform and
Resolution of the Conflict
First,
the Bush administration ought to recognize the legitimacy of the
Democrats' complaint that Republican obstructionism kept open vacancies
that the Clinton administration by right should have filled. It is not enough to dismiss this grievance as
ancient history or simply payback for the Democrats' actions during the
102nd Congress. As the Table indicates, the
Republicans subsequently took obstructionism to new and sustained levels. There must be recognition that this has
poisoned the atmosphere, and the administration should take the
initiative to address these grievances. At
the very least, the administration should name one of the blocked
Clinton nominees from Michigan to the Sixth Circuit in return for
support of Bush's other Michigan nominees. The
same should be done for the District of Columbia Circuit and even for
some district court judgeships. It is
essential to clear the air and to lay old grievances to
rest.
Second,
the Bush administration, in considering people to nominate, should be
more sensitive to the likely reactions of the Democrats. President
Clinton shied away from those perceived by Republicans as liberal
activists (Goldman and Slotnick 1997, 1999; Goldman,Slotnick, Gryski,
Zuk and Schiavoni 2003; Hatch 2002). President
Bush, particularly if he is reelected, should aim for more moderate
conservatives for all three court levels. This
would surely lessen much of the contentiousness.
Third,
Senate Republicans and Democrats should agree to a permanent change in
the confirmation ground rules, either by formal rule change or a Senate
resolution, that no matter what party controls the White House and the
Senate, the Senate Judiciary Committee will hold hearings on every
nominee. No senator, even from the
nominee's state, should be able to prevent the committee from holding a
hearing on a nominee. Of course, the
committee can vote not to recommend and even not to send the nomination
to the Senate floor. The wishes of home-state senators can be respected
by fellow senators at this stage if they so desire. But
the Senate Judiciary Committee should do its constitutional duty by
voting a nominee up or down.
Fourth,
the Senate Majority Leader should schedule a vote in a timely manner on
all nominees sent to the floor by the Senate Judiciary Committee. By allowing one or more senators to place
secret or perhaps not-so-secret holds on nominees, thus delaying perhaps
indefinitely a vote, the Senate majority leader (as happened during
Clinton's second term) undermines the confirmation process. The Senate
should do its constitutional duty and vote to confirm or reject the
president's nominees. If a sufficient
number of senators choose to filibuster a nomination, repeated failure
to obtain cloture should be recognized as a manifestation of advice and
consent. Although it can be argued that this would turn confirmation
from a simple majority to confirmation by a supermajority -- 60 votes
needed to close off debate -- it should be recognized that the
Constitution only mentions advise and consent; there is nothing
requiring a simple majority vote for judicial confirmation. Supporters
of a nominee who is truly controversial should have to be able to
persuade 60 senators that he or she indeed has the judicial temperament
to administer justice fairly.
Fifth,
if the Senate fails in its responsibilities by not holding hearings,
committee votes, or floor debate, due to the actions of one or a few
senators, the president should utilize the check and balance built into
the Constitution, that of making recess appointments. Recess
appointment of judges was a common practice through the Johnson
administration. Some 300 judges over the
course of the nation went on the bench first as recess appointees,
including
Now
is an opportune time for reform of the confirmation process to take
place. Republicans are currently in a
stronger position than Democrats. They should take the initiative and
Democratic leaders should be responsive. Statesmanship and political
courage are needed by our political leaders in both branches of
government to avert future crises and to reduce the bitterness,
contentiousness, and delays that characterize the confirmation process
in far too many instances. Sadly, there is no indication that either the
White House or the Senate leadership has such vision. While
the confirmation process has not broken down, the trends are not
encouraging and, indeed, it is not inconceivable that time is running
out.
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Sheldon
Goldman is Professor of Political Science at the University of
Massachusetts at Amherst where he has taught since 1965. His
books include Picking Federal Judges
(Yale University Press, 1997); Constitutional Law: Cases and Essays (2nd
ed., HarperCollins, 1991); The Federal Courts as a Political System,
(3rd ed., Harper & Row, 1985), American
Politics and Government (Scott Foresman/Little Brown, 1990)
co-authored with Barbara Hinckley; American Court Systems (2nd
ed., Longman, 1989) co-authored with Austin Sarat; and Judicial
Conflict and Consensus (University of Kentucky Press, 1986)
co-authored with Charles Lamb. He has
also authored numerous articles in professional journals including Judicature,
the Law and Society Review, the American Political Science
Review, Journal of Politics, Polity, Western
Political Quarterly, and the Wisconsin Law Review. His
professional activities include serving as Chair, Law and Courts
Section of the American Political Science Association, 2000-2001, and
serving on the editorial boards of several journals. His
email address is sheldon.goldman@polsci.umass.edu.
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