Parties,
Presidents, and Procedures:
The
Battle Over Judicial Nominations in the U.S. Senate
Jason M.
Roberts
Washington
University in St Louis
Introduction
Article II of the U.S.
Constitution
creates a fundamental tension between the president and the Senate with
regards to judicial nominations by vesting the power of nomination in
the president, while requiring the Senate's "advice and consent" before
a nominee is appointed. History is ripe with examples of conflict
between the president and the Senate over individual nominees, such as
President Nixon's failure to get Clement Haynesworth and Harrold
Carswell confirmed, the filibuster of Abe Fortas's nomination as Chief
Justice of the Supreme Court, and more recently the controversies
surrounding the nominations of Robert Bork and Clarence Thomas to the
Supreme Court. Historically, when controversy has erupted it has
centered on the merits of an individual nominee. Haynesworth and
Carswell were seen as mediocre jurists, many senators had ethical
concerns about Abe Fortas and Clarence Thomas, and Robert Bork's long
academic career provided plenty of fodder for those who wished to
question his "judicial temperament."
However, this tension between
the Senate and the president has reached a new level of intensity in the
past decade as interest groups, political parties, senators, and the
president have come to view each nomination, not necessarily on its own
merits, but rather as a round in an ongoing battle over the ideological
makeup of the federal judiciary. As vacancies on the Supreme Court have
become rare, the battle has moved down to the level of the U.S. Courts
of Appeals and the U.S. district courts. Presidents Bill Clinton and
George W. Bush have experienced great difficulty in securing
confirmation for their lower court nominees, in most cases because of
long delays or outright obstruction in the U.S. Senate.
The ongoing battle over the
makeup of the federal judiciary has spilled over into everyday political
discourse. Media coverage of the judicial nomination and confirmation
process has become more prominent, as the president and Senate parties
have sought to mobilize public opinion on their side of the debate with
the hopes of forcing action by the other party. One element of the
public debate over judicial nominees has centered around the maze of
Senate rules and norms which can be used to stall nominations. As
detailed below, there are many procedural hurdles that nominees must
clear before securing appointment, and, in the wake of the recent
controversy, there have been numerous proposals to alter Senate rules to
make the nomination and confirmation process work more efficiently. This
essay analyzes some of the more prominent rules change proposals in
terms of the likely effect they would have on the nomination and
confirmation process as well as the likelihood of them being adopted.
Recent Trends in Delay
For most of U.S. history,
presidents have had little trouble getting their nominees to the federal
judiciary confirmed by the Senate. As
Binder (2001) points out, despite the Senate's reputation as "black
hole" for nominees, most sail through with little difficulty or delay. Over 90 percent of President Carter's nominees
to the U.S. Courts of Appeals were confirmed, with an average wait time
of less than eighty days from nomination to confirmation.1
President Reagan was able to secure confirmation for over 80 percent of
his U.S. Courts of Appeals nominees, with an average time from
nomination to final Senate action similar to that of Carter's nominees,
despite Reagan facing a Democratic Senate during the last two years of
his administration. The confirmation
process began to get bogged down during the administration of George H.
W. Bush, but beginning in the administration of President Clinton and
continuing now with President George W. Bush, the process has changed
dramatically.
The Senate confirmed less than
60 percent of Clinton's nominees to the U.S. Courts of Appeals with an
average of 230 days elapsing between nomination and final Senate action,
or inaction as was often the case. The
dramatic change in this process during the Clinton administration is
best exemplified by Richard Paez, who waited over four years -- 1,506
days -- to be confirmed for a seat on the Court of Appeals for the Ninth
Circuit. President George W. Bush saw the Senate confirm less than half
of his Courts of Appeals nominees during the 107th Congress (2001-2002),
with an average of over 150 days from nomination to Senate action. Miguel Estrada, a Bush nominee for the Court
of Appeals for the D.C. Circuit, awaited approval by the Senate
Judiciary Committee for almost two years, and then encountered more
delay after clearing committee. He eventually withdrew his name from
consideration after the Senate failed to take an up or down vote on his
confirmation -- despite his nomination having been pending for more than
two and a half years. The lack of prompt
Senate action on many of these nominees has drawn the scorn of many
observers at least in part because most of the delayed or blocked
nominees would have received a positive confirmation vote in the Senate,
had such a vote been cast.
Senate Rules, Norms, and
Obstruction
While the Constitution clearly grants the "advice and
consent" power to the Senate, the parliamentary rules by which
nominations and other Senate business are considered was left to the
chamber to decide. Over its history, the
Senate has developed a labyrinth of rules and norms that make it
possible for a determined minority to delay most Senate business --
including judicial nominations. For judicial nominees, the highest
hurdle to clear is the Senate Judiciary Committee. All
judicial nominees submitted by the president are referred to the
Judiciary Committee for consideration. The Senate gives the Judiciary
Committee great latitude in determining when or if hearings will be held
on nominees. The committee chair is in charge of scheduling hearings,
and if hearings are not scheduled, nominees do not reach the floor.
Almost one-third of President Clinton's Courts of Appeals nominees did
not receive a hearing, while more than half of President George W.
Bush's Courts of Appeals nominees did not receive a hearing during the
107th Congress (2001-2002).
The Senate has also developed
the norm of "senatorial courtesy," which has often manifested itself in
the Senate's "blue slip" procedure. Since the 1910s, the Judiciary
Committee has sent out blue sheets of paper asking senators from a
nominee's home state his or her opinion of the nominee (Binder 2003). Traditionally, if a home state senator
objected to a nominee, he or she would write on the blue slip that the
nominee was "personally offensive." Throughout history, negative blue
slips have often meant that the Judiciary Committee would not act on a
nominee. While this is not always the case today, a negative blue slip
usually makes confirmation of the nominee much less likely.
In addition to clearing the
necessary hurdles to gaining a hearing from the Judiciary Committee, to
be reported favorably to the Senate a nominee must gain majority support
in the Judiciary Committee. This can be difficult if the president and
the Senate majority are of different parties. For
example, President George W. Bush's nomination of Charles Pickering for
a seat on the Circuit Court of Appeals for the Fifth Circuit was
defeated by the Judiciary Committee in early 2002 by a party line vote
in committee, which had the effect of keeping the Pickering nomination
off the Senate floor.2
Senate Rules also present
hurdles for nominees who have been reported favorably from committee.
Most business is brought up in the Senate under a unanimous consent
agreement negotiated between the majority and minority leaders. Thus,
for a nominee to get onto the floor agenda, he or she typically must
have bipartisan support in the chamber. In the absence of a unanimous
consent agreement, the majority leader must gain passage of a motion to
proceed to the consideration of a nominee. This motion, like most Senate
business, is subject to extended debate, or filibuster, by any senator
or group of senators. While there are limited historical examples of a
filibuster on the motion to proceed to a nomination -- Abe Fortas's
nomination to be chief justice is the only known instance -- the threat
of a filibuster may have played a significant role in keeping many of
President Clinton's nominees off the Senate floor.3 In many
instances placing a "hold", or threatening to object to the
consideration of a nominee, is enough to keep the majority leader from
attempting to bring the nominee to the floor.
The role of extended debate,
or filibusters, in judicial nominations has come to the forefront of
debate during the 108th Congress. As a
legislative minority, Senate Democrats are unable to block nominations
in the Judiciary Committee, and have found that the filibuster is the
only means they have of blocking judicial nominees that they find
objectionable. As of this writing, Senate Democrats have employed the
filibuster on five of President George W. Bush's U.S. Courts of Appeals
nominees.4 Rule XXII of the Senate provides that extended
debate on legislation or most other Senate business can only be ended by
invoking cloture. A senator wishing to
invoke cloture must gain sixteen signatures on a petition, then once the
petition is filed with the presiding officer, a vote on the motion to
invoke cloture occurs two days later. If three-fifths of the Senate, or
sixty senators, vote to invoke cloture, then debate is limited to thirty
additional hours; however, if cloture is not invoked, debate may
continue unabated (Oleszek 2004).
As of this writing the Senate
has failed to invoke cloture on any of the five nominees that have been
filibustered. Seven cloture votes failed on the nomination of Miguel
Estrada prior to his withdrawal from consideration, four cloture votes
on Priscilla Owen's nomination have failed, two failed on William Pryor,
and one each failed on Janice Brown and Charles Pickering. While these
filibusters have prevented confirmation votes on these nominees, Senate
business has continued as the Senate has used "tracking" on these
nominations. Tracking is a procedure by which the Senate agrees by
unanimous consent to move onto other business unaffected by a
filibuster, while the filibuster essentially continues in the background
(see Binder, Lawrence, and Smith 2002 for more details on tracking). Tracking is a double-edged sword for the
majority party in the Senate; on the one hand it prevents a filibuster
from delaying other important Senate business, but it also makes
filibustering easier by not forcing the filibustering senator to hold
the floor continuously -- some have labeled it "filibuster light" for
this reason.
By allowing Senate business to
continue uninterrupted, tracking also keeps a filibuster out of the
public eye. This has caused a great deal of frustration for Senate
Republicans as they seek to highlight what they view as abuses of Senate
rules and traditions. As a result, the Senate staged a forty-hour
continuous debate on judicial nominees in November 2003. Labeled a
"reverse filibuster" by some, Republicans sought to highlight the
unprecedented use of the filibuster on U.S. Courts of Appeals nominees,
while Democrats used their time to point out that they had used the
filibuster only sparingly to prevent "extremist" judges from gaining a
lifetime tenured seat on the federal bench. The "reverse filibuster"
provided some interesting political theatre, but likely only served to
further escalate the battle over the makeup of the federal judiciary. The battle has continued as President Bush has
used his constitutional right to make appointments while the Senate is
in recess to seat two of the filibustered nominees -- Charles Pickering
and William Pryor -- on the Court of Appeals for the Fifth Circuit.
Proposed Rules Changes
As the previous section
details, the rules and norms of the Senate provide numerous means for
delaying and/or defeating judicial nominees, and over the past decade
senators of all political stripes have not hesitated to use these tools
to delay or block nominees. Unlike legislation, obstruction of a nominee
is difficult to overcome; there is no room for compromise; a nominee
cannot by amended or modified; the Senate must either accept, reject, or
obstruct the nomination. Because of the
growing use of obstruction and the difficulty in overcoming it, numerous
proposals to alter Senate rules have been proposed in the past few years. President George W. Bush suggested a complete
change in the process by proposing a rules change guaranteeing each
nominee a hearing and a floor vote after a set amount of time. However,
such a fundamental change in the Senate's "advice and consent" role did
not receive serious consideration. Two other changes have been widely
discussed in the past year: the first, a proposal labeled the "nuclear
option," whereby the presiding officer of the Senate would issue a
ruling upholding the majority party's position that Rule XXII does not
apply to debate on executive nominations; and second, a proposal by
Majority Leader Bill Frist to formally change Rule XXII to set up a
declining threshold of votes needed to invoke cloture on nominations.
The Nuclear Option
The most drastic proposed
change in Senate policy regarding judicial nominations is the one known
as the "nuclear option". There are several
ways in which this option could potentially play out, but they all share
the same "nuclear" feature. The presiding officer, presumably the
vice-president, would rule against existing precedents and, likely, the
advice of the non-partisan Senate parliamentarian, in favor of the
position of the majority party that closing debate on executive
business, such as judicial nominations, requires only a majority vote.
This move would undoubtedly draw a "point of order," or objection, from
a member of the minority party. The presiding officer of the Senate
would then rule in favor of the majority party on the point of order. After the ruling by the presiding officer, a
member of the minority party would appeal the ruling of the chair, at
which time a member of the majority would move to table the appeal. A
motion to table an appeal is not debatable and is decided by majority
vote. If the vote to table the appeal was successful, the ruling of the
presiding officer would stand, reversing or altering existing precedents
and, in some way, bringing the Senate to a vote on the nominee. This
option is referred to as the "nuclear option" because the fallout from
such a strategy would be devastating to the operation of the Senate.
Senators who object to this option could stall Senate business for
months and the ability of the Senate to transact routine business would
be compromised. The Senate often operates via unanimous consent
agreements and it is difficult to imagine senators consenting to such
agreements in the wake of a forced rule change such as this.
It is also not clear that this
proposal would be particularly helpful in dealing with the problem of
delay on judicial nominations. Most of the nominees who have encountered
significant delay have found the Judiciary Committee, not the Senate
floor, to be the major obstacle to confirmation. Rendering Rule XXII
invalid for judicial nominations would not help nominees who were
stalled in the Judiciary Committee. Given the high costs and low
benefits involved in this strategy it seems unlikely that the Senate
will pursue this option.
The Frist Proposal
The Frist proposal also seeks
to change the floor procedure for judicial nominees but, unlike the
"nuclear option," the Frist proposal is grounded in Senate rules. Frist
and eleven cosponsors introduced Senate Resolution 138 in May 2003, and
the Senate Rules Committee reported it favorably in June 2003.5
The proposal would amend Rule XXII of the Senate to provide that after
twelve hours of floor debate on a nominee,
...the affirmative vote
required to bring to a close debate upon that nomination shall be
reduced by 3 votes on the second such motion, and by 3 additional votes
on each succeeding motion, until the affirmative vote is reduced to a
number equal to or less than an affirmative vote of a majority of the
Senators duly chosen and sworn. The required vote shall then be a simple
majority.
This proposal would change
current procedure in numerous ways, for example, the Senate would not be
able to attempt to invoke cloture until twelve hours of debate had
passed, and multiple cloture petitions could not be pending at one time.
However, the most important difference would be the declining number of
votes needed to end debate. Under the Frist proposal, the fourth cloture
vote would require only a simple majority to pass, thus clearing the way
for an up or down vote on the nominee in question. This would allow
opponents of a nominee to hold up a vote for several days if they so
desired, but no longer would a legislative minority be able to keep a
nominee who has reached the Senate floor from having a confirmation vote.
Much like the nuclear option,
the Frist proposal deals only with obstruction on the floor of the
Senate; committee obstruction and delay would be unaffected by this
proposal. As such, his proposal would likely only speed up the process
when the president was facing a Senate controlled by the same party as
the president. Thus the delays encountered
during the final six years of Bill Clinton's presidency and most of the
first two years of George W. Bush's presidency would not have been
mitigated by the Frist proposal.
Adoption of the Frist proposal
would likely not end obstruction on judicial nominations. A determined
minority could object to the tracking procedure outlined above and
prevent the Senate from considering other matters while a nomination was
pending. Given the large number of judicial nominees put forward each
year, and the "waiting period" required before each cloture vote, a
Senate majority could find themselves forced to choose between
confirming judicial nominees and transacting other legislative business.
Opponents of the proposal also fear that altering Rule XXII for
nominations would eventually lead to a change in debate rules for other
legislation, and that setting specific cloture procedures for nominees
might encourage more filibusters on nominees.
The Frist proposal seems
unlikely to secure the necessary two-thirds majority for a change to
Rule XXII. The Senate, which carefully guards its norms and traditions,
is generally reluctant to undertake wholesale changes in its rules.
Further, current Senate Democrats are unlikely to support the proposal
as they see themselves as the target of the rule, and many Republicans
fear that they may one day find themselves in the minority and unable to
block judicial nominees that they find objectionable. Thus while Senator
Frist has promised to bring the proposal to the floor at some point
during the 108th Congress, the odds of it actually being adopted by the
Senate are not high.
Concluding Thoughts
The past decade has seen an
unprecedented level of conflict between the president and the Senate
over the ideological makeup of the federal judiciary. Actions
such as the "reverse filibuster" and President Bush's recent use of
recess appointments to overcome Senate obstruction seem to have only
further entrenched the partisan divide that is at the heart of the
battle over the composition of the federal judiciary. This conflict has
produced extraordinarily long delays in the confirmation process, heated
partisan rancor both inside and outside of the Senate, and a backlog of
cases in the federal courts that continue to find themselves
understaffed.
While some of the proposed
changes in Senate rules and procedures with regards to nominations could
close off some opportunities for delaying action on nominees, none of
the proposals are comprehensive enough to fully close off opportunities
for delaying Senate action. The provisions in the U.S. Constitution requiring cooperation between
the Senate and president in order to staff the judicial branch of
government are the direct causes of the current conflict -- rules
changes in the Senate will not alter this fundamental tension. While
members of both parties have sought to put the blame for the increase in
delays on the other party, the truth is that both parties have gone to
extraordinary lengths to prevent a president of the opposite party from
gaining confirmation of judicial nominees. There appears to be no end to
this battle in sight. Elections seem to only embolden the "out" party
rather than weakening their resistance. Until the level of acrimony
between Democrats and Republicans lessens, battles over the makeup of
the federal judiciary are likely to continue with or without changes in
Senate rules and procedures.
Notes
1. Confirmation
and delay statistics taken from Rutkus and Sollenberger (2003).
2. Bush
later renominated Pickering in the 108th Congress, and, when the Senate
failed to act, Bush made a recess appointment.
3. In
fact after a controversial recess appointment made by Clinton in late
1999, Senator James Inhofe (R-Okla.) threatened to object to and block
all of Clinton's judicial nominations. He ultimately was not successful
in blocking all confirmations, but threatened obstruction by Inhofe and
others significantly slowed the process during the Clinton presidency.
4. The
five are Miguel Estrada, Charles Pickering, Priscilla Owen, William
Pryor, and Janice Brown.
5. The
cosponsors are Zell Miller (D-Ga.), Mitch McConnell (R-Ken.), Ted
Stevens (R-Alaska), Rick Santorum (R-Pa.), Jon Kyl (R-Ariz.), Kay Bailey
Hutchison (R-Texas), Trent Lott (R-Miss.), Orrin Hatch (R-Utah), John
Cornyn (R-Texas), Saxby Chambliss (R-Ga.), and George Allen (R-Va.).
References
Binder, Sarah A. 2001. "The
Senate as a Black Hole: Lessons Learned from the Judicial Appointment
Experience." The Brookings Review 19(2): 37-40.
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Websites of Interest |
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The "Judicial Nominations"
link of the Justice Department's Office of Legal Policy provides the
status of nominations to the federal bench. |
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The "Judicial Nominations"
link under the "In Focus" section provides news releases, press
briefings, and the president's statements about his nominees. |
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"Senator Leahy's Work on
Judicial Nominations" provides a list of President Bush's 168 federal
court nominees who were confirmed by the Senate, and the 6 nominees
blocked by the Senate; also provides similar information for President
Clinton's nominees. |
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This site covers all the
happenings in the legal field and provides links to judicial hearing
testimony, news articles, and editorials. |
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Supported by Republican
conservatives and former officeholders, this site provides a defense
of President Bush's judicial nominees. |
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Supported by a law firm
devoted to protecting natural resources and wildlife, this site provides
information on judicial nominees from a liberal perspective. |
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Created by a coalition of
organizations that support President Bush's nominees, this site provides
a comprehensive list of nominees and the status of Senate action. |
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Maintained by the Judicial
Selection Project of the leftist Alliance for Justice, this site
provides data on each of the federal circuit courts of appeals,
biographies of the nominees, and their views on various issues. |
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Jason
M. Roberts is a Ph.D. candidate in political science and fellow of
the Weidenbaum Center on the Economy, Government, and Public Policy at
Washington University in St. Louis. He will
be joining the faculty of the University of Minnesota in the Fall of
2004. He has published articles in the American Journal of Political
Science and the Journal of Politics (forthcoming). His current work
focuses on institutional change in the U.S. Congress. His email address
is jroberts@polisci.umn.edu
Copyright, The Carl Albert Center