To listen to President George W. Bush and to Republican Senate leaders including Senate Judiciary Committee Chair Orrin Hatch, one would think that there is a serious judicial confirmation crisis and that the ability of the federal judiciary to function is in peril. They base this on the success of the Democrats in the Senate to prevent a handful of Mr. Bush’s nominees to courts of appeals from being voted on by the full Senate. By preventing floor votes on the nominations of Miguel Estrada (who eventually withdrew from consideration), Priscilla Owen, William Pryor, Carolyn Kuhl, Charles Pickering (who was given a recess appointment on January 16, 2004), Janice R. Brown, and nominees from Michigan to the Sixth Circuit, in particular, Democrats have been painted as obstructionists.

Democrats, on the other hand, respond that their record is infinitely better than the Republicans’ treatment of Clinton nominees when the Republicans controlled the Congress during the last six years of the Clinton presidency. Democrats point out that far fewer Bush nominees have been held up than were Clinton nominees. They also argue that it is unfair for the Republicans to be able to fill vacancies that exist solely because the Republicans prevented Clinton’s nominees from filling those positions. Sixth Circuit vacancies from Michigan are perhaps the most egregious example from the standpoint of Democrats, but there are others.

Is there really a confirmation crisis and if so who is to blame?

At the outset, we need to differentiate confirmation when there is divided government with one party controlling the Senate and the other the White House, from unified government when one party controls both the Senate and the White House. Since the beginning of 2003, there has been unified government, which has meant that almost all Republican nominees are receiving hearings and votes by the Republican-controlled Senate Judiciary Committee, and those nominations are being sent to the floor of the Senate. The opportunities for obstructionism are essentially on the floor of the Senate and by the use of the filibuster. Since the filibuster is being used very sparingly by the Democrats, it is difficult to make a convincing argument that there is currently a confirmation crisis (with the possible exception of the Sixth Circuit). In the first session of the 108th Congress, 55 district court and 13 appeals court nominees were confirmed. Overall, the vacancy rate on the lower federal courts is the lowest in well over a decade.

But this does not mean that all is well with the confirmation process. There most assuredly was a confirmation crisis during President Clinton’s second term and a confirmation crisis for appeals court nominees during the first two years of President Bush’s administration when the Democrats controlled the Senate. The growing ideological divide between Democrats and Republicans starting with the Reagan Administration, along with the Reagan and then both Bush administrations’ determination to staff the judiciary with philosophically compatible individuals, can be said to be the underlying causes of the crisis. Even though President Clinton sought middle-of-the-road jurists, some of the more extreme conservative Republican senators found a number of Clinton centrists too liberal for their tastes, although after long battles some were confirmed and by large majorities (Richard Paez, Marsha Berzon, and William Fletcher come immediately to mind).

Blame for the confirmation crisis, a crisis that is essentially one of divided government, can be assigned to both political parties but it is hard to deny that Republican Presidents Reagan, Bush I and Bush II have provoked it by nominating some candidates seen by Democrats as being too extreme in their views. Democrats believe that it is not humanly possible for extremists to be impartial arbiters of the law and that therefore they lack the judicial temperament that is a prerequisite for being a judge. Likewise, some Republican senators thought that certain Clinton nominees were too liberal and that they therefore lacked the necessary judicial temperament. Each side seemed to ratchet up the tactics of obstruction and delay. And even with today’s unified government, the partisan bickering, accusations, and ill will appear to be unprecedented, making for, at the very least, a very unpleasant process for some nominees even if almost all are getting confirmed. With the recess appointment of Pickering and the implicit threat of more recess appointments, the ill will and contentiousness between Democrats and Republicans can be expected to make a bad situation even worse.

It is legitimate for senators to oppose a nominee because they believe that the nominee lacks the requisite judicial temperament. But it is incumbent upon the opponents of a nominee to present the evidence to fellow senators and to the public. Secretly sabotaging a nomination in committee by preventing a hearing or a vote, as occurred numerous times during the Clinton presidency, is antithetical to the democratic process. The virtue of the filibuster is that it is out in the open and the opponents of a nomination are obligated to defend their position.

What is to be done?

First off, the Bush administration ought to seriously consider the Democrats’ complaint that Republican obstructionism kept open vacancies that the Clinton administration, by right, should have filled. It is not enough to say that the past is past and that we should start with a clean slate. 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 offer to 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, 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 which party controls the White House and the Senate, the Senate Judiciary Committee will hold hearings on all nominees. No senator, even from the nominee’s state, should be able to prevent the committee from holding a hearing on a nominee. When the Senate Judiciary Committee fails to hold a hearing on a nominee, it is failing its constitutional responsibility to advise and consent. 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.

Third, the Senate Majority Leader should schedule a vote in a timely fashion on all nominees sent to the floor by the Senate Judiciary Committee. By allowing one or more senators to place secret (or sometimes not-so-secret) holds on nominees, thus delaying perhaps indefinitely a vote, the Senate Majority Leader (as happened during Clinton’s second term) subverts the constitutional directive that the Senate advise and consent. The Senate must 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, thus leaving it to the Senate to determine how it gives that advice and consent. There is nothing in the Constitution 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 the nominee indeed has the judicial temperament to administer justice fairly.

Fourth, 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 Chief Justice Earl Warren and Associate Justice William Brennan. Of course, they received their appointments not because of a constitutional impasse due to the intransigence of a handful of senators, but because it was necessary to have a full strength judiciary and the recess appointment method permitted this. But there are also some instances when recess appointments were used or contemplated in impasse situations. The recess appointment of Thurgood Marshall to the U.S. Court of Appeals for the Second Circuit (racism was the issue) and President Truman’s offer of a recess appointment to Frieda B. Hennock to the district bench in New York (sexism was the issue) come to mind (Hennock declined). President George W. Bush’s recess appointment of Charles Pickering, in the face of over 40 Democratic senators’ opposition as evidenced by their support of and participation in the filibuster against Pickering, although constitutionally permissible, is unwise in that it worsens the rift between Democrats and Republicans in the confirmation process.

Now is an opportune time for reform of the confirmation process to take place. Republicans hold all the cards, with the exception of having the necessary votes to break a filibuster. 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 and contentiousness 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 courage. While there may not be an outright confirmation crisis at this time, it is not inconceivable that time is running out.

April 15, 2004

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