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THE JUDICIAL CONFIRMATIONS PROCESS
SELECTING FEDERAL JUDGES IN THE TWENTY-FIRST CENTURY

A JURIST ONLINE SYMPOSIUM
ANATOMY OF A CONFIRMATION MESS: RECENT TRENDS IN THE FEDERAL JUDICIAL SELECTION PROCESS
Professor John Anthony Maltese
University of Georgia
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In November, Republicans took to the floor of the Senate for an around-the-clock 鍍alkathon lasting almost 40 hours to condemn the Democrats use of the filibuster to block confirmation of several of President Bush痴 judicial nominees. The event was just the latest in a string of attacks and counter-attacks launched by both parties in the on-going war to control the federal bench. The war shows no sign of ending anytime soon, and the hostilities have prompted some to suggest that the process of selecting and confirming federal judges is broken. What has gotten us into the current mess? An unexpected instigator擁n a classic example of an act begetting unanticipated consequences洋ay be Jimmy Carter.

For years, the selection of federal judges was a form of senatorial patronage. In theory, presidents were responsible for choosing nominees to fill seats on the lower federal judiciary but, in practice, they deferred to 塗ome-state senators from the state where the vacancy occurred容specially at the district court level. Federal district courts all fall within the borders of a single state (courts of appeals similarly fall within the confines of a specific geographic region). By tradition, judges on district courts come from the state where the district resides (a nod to our long-standing tradition of local control of justice). Likewise, judges on courts of appeals come from within their circuit.[1] Starting with George Washington, a practice called 都enatorial courtesy emerged. If a home-state senator opposed a nominee from his state, the full Senate would reject the nominee out of courtesy to that senator. As a result, presidents sought advice from home-state senators about whom to nominate to fill vacancies on the lower federal courts. This tradition emerged before the age of easy communication and it assumed that home-state senators were better able to identify qualified nominees than the president.

By the 1940s, this practice of 都enatorial courtesy was formally institutionalized through the development of the so-called 澱lue slip procedure. After receiving the president痴 nomination, the chair of the Senate Judiciary Committee sends a letter to both senators from the state where the vacancy occurs to ask their advice on the nominee. Included in the letter is a blue slip of paper on which such advice can be offered. Although senators may put their support or opposition in writing and return the form, it is understood that failure to return the blue slip amounts to a de facto invocation of senatorial courtesy that will prevent committee hearings on the nominee and thereby block the nomination. The practice of senatorial courtesy is what allowed senators to use judgeships as a form of patronage. Presidents simply deferred to the choice of a nominee offered by home-state senators of their party. Home-state senators of the opposition party also retained a degree of veto power through the blue slip, although that power fluctuated across time. The result, as former attorney general Robert F. Kennedy once put it, was 都enatorial appointment with the advice and consent of the Senate.納2]

Shortly after taking office in 1977, President Carter initiated reform of the selection process. He argued that judges should be selected based on merit and that the patronage system perpetuated by senatorial courtesy thwarted that goal. (No doubt, he also wanted to bypass the potential veto power of conservative Southern Democrats over his own nominees.) Through executive order, Carter created a Circuit Court Nominating Commission to develop a short list of potential nominees based on merit. The final choice would come from that list. Through a separate executive order, he urged home-state senators to create their own nominating commissions to advise them on district court nominees. By 1979, senators from 31 states had complied with the request. These two executive orders significantly undermined the old patronage system of choosing federal judges. Home-state senators still retained the ability to exercise their veto through the blue slip procedure, but Carter痴 reforms had effectively taken away their initial choice of a nominee.

By wresting control of the initial selection process out of the hands of senators, Carter made it easy for his successor, Ronald Reagan, to seize control of the selection process. Reagan abolished Carter痴 nominating commissions and began the practice of screening nominees through the White House and the Justice Department. Critics charged that the screening amounted to an ideological 斗itmus test. Attorney General Edwin Meese III seemed to confirm the charge by saying that the screening was used to 妬nstitutionalize the Reagan revolution.納3] Since federal judges have life tenure, careful ideological screening of nominees could affect judicial policymaking for years to come. Liberals, not surprisingly, balked. If the president was making ideology an explicit criterion for selection, surely they could use it as a criterion for confirmation.

While the president has the power to nominate federal judges, the Senate retains the power under the Constitution to offer 殿dvice and consent. The historical record suggests that this power is a significant one. Empowering the president to nominate judges was a last-minute compromise by the Committee on Postponed Matters at the Constitutional Convention in 1787. Previously, the Convention had rejected executive appointment, giving the appointment power to the Senate alone. The Committee of Detail incorporated Senate appointment of judges into its preliminary draft of the Constitution. Only after renewed opposition from proponents of a strong executive did the convention embrace the compromise. Although giving the president the power to nominate (with the 殿dvice of the Senate), the compromise did nothing to significantly weaken the Senate痴 own authority. The Senate could still withhold its consent用resumably, for any reason.[4] As George Washington put it in 1789: 笛ust as the President has a right to nominate without assigning reasons, so has the Senate a right to dissent without giving theirs.納5]

And so, faced with Republican judicial nominees chosen because of their conservative ideology, Democrats in the Senate began to exert their power to withhold consent based on that ideology. The defeat of Robert Bork痴 1987 Supreme Court nomination was the watershed event that unleashed what Stephen Carter has called 鍍he confirmation mess.納6] There was no question that Bork was a highly qualified nominee. He was rejected not because of any lack of qualifications, or for any impropriety, but because of his stated judicial philosophy: how he would vote as a judge.

The factor that allowed the Bork defeat in 1987 was divided government. Although Republicans controlled the White House, Democrats controlled the Senate. Divided government謡hich before World War II was a rare occurrence擁s now commonplace. From 1969 through 2003, the same political party controlled both the White House and the Senate for only 13 out of 35 years; the same party controlled the White House and both houses of Congress for only 7 of those 35. When the opposition controls the Senate, its willingness to withhold consent on judicial nominees increases considerably. At the Supreme Court level, the statistics are striking: almost 90% approval of nominees during unified government, but only about 55% approval when the White House and the Senate are controlled by rival parties.[7] Arguably, divided government encourages both the president and Congress to have a stake in each other痴 failure.

Along with the recent trend of divided government has come a pronounced increase in partisanship. Parties in Congress have become more polarized, with a dramatic increase in partisan voting. Since the mid-1990s, the Senate, as measured by party votes, is even more partisan than the House of Representatives.[8] At the same time, partisanship is up among the electorate: party loyalty has increased, ticket splitting has decreased, and the ideological gap between members of the two parties has widened.[9] Polarized politics has led to a dramatic 菟artisan wedge, illustrated in public support for President Bush. An analysis by political scientist Gary Jacobson of 28 public opinion polls between Bush痴 inauguration and the terrorist attacks on September 11, 2001, showed that 88 percent of self-identified Republicans approved of Bush痴 performance, compared with only 31 percent of self-identified Democrats. September 11 temporarily narrowed that 57-point gap, but even after the Republican success in the Fall 2002 midterm elections, the gap averaged 54 points.[10]

Likewise, the electorate has been reluctant to give presidents clear mandates. Neither George W. Bush in 2000 nor Bill Clinton in either 1992 or 1996 received 50 percent of the popular vote (Bush, of course, was the first person since Benjamin Harrison in 1888 to lose the popular vote but still win the White House). Even Ronald Reagan痴 斗andslide in 1980 amounted to only 50.7 percent of the popular vote (although he won 90.9 percent of the electoral college vote). Initial approval ratings of new presidents are down, too. Dwight Eisenhower and Lyndon Johnson both entered office with 78 percent approval ratings. Even John F. Kennedy, who won only 49.7 percent of the popular vote in 1960, had an initial approval rating of 72 percent. No president since Carter, on the other hand, has had an initial approval rating of more than 58 percent (and George W. Bush had the highest initial disapproval rating since polling began).[11]

Finally, interest groups have entered the confirmation process with a vengeance. Although interest groups played an important role in Supreme Court confirmation battles as early as 1881, and helped to orchestrate the defeat of Supreme Court nominees John J. Parker in 1930, Clement Haynsworth in 1969, and G. Harrold Carswell in 1970,[12] the sheer number of groups involved, their ongoing involvement in the judicial selection process, and the intensity of their rhetoric have increased dramatically. Interest groups have also become routine players in the appointment of lower federal judges.[13] Indeed, interest group involvement is no longer the exception, but the rule.

This potent combination of divided government, partisan politics, lack of electoral mandates, and interest group polarization has given rise to modern confirmation battles. The federal judicial appointment process is not broken; it merely reflects the strains of our current political climate.

Over the last few years, each of these four factors has been at work. The 1994 midterm elections brought Republican control of the Senate. The 敵ingrich revolution ushered in not just divided government but also strident partisanship within the Senate. President Clinton won reelection in 1996, but he did so with only 49 percent of the popular vote預nd divided government continued. Although Clinton had a record of nominating moderate candidates to the federal judiciary,[14] conservative Republicans were eager to perpetuate Reagan痴 efforts to appoint ideological purists to the bench. In his 1996 bid for the Republican presidential nomination, Pat Buchanan lashed out at 屠udicial dictatorship, accusing liberal federal judges of protecting 田riminals, atheists, homosexuals, flag burners, illegal aliens (including terrorists), convicts, and pornographers.納15] Interest groups also entered the fray.

After Clinton痴 reelection, the conservative Judicial Selection Monitoring Project criticized Republicans for voting to confirm President Clinton痴 judicial nominees (the Senate had confirmed 99 percent of his first-term judicial nominees without a roll call vote). Sponsored by the Free Congress Foundation, the Project accused Clinton of nominating ideologically extreme 屠udicial activists. In a fundraising letter for the project, former Supreme Court nominee Robert Bork wrote that Clinton痴 nominees, 電rawn almost exclusively from the ranks of the liberal elite, had 澱lazed an activist trail, creating an out-of-control judiciary.納16] It was time, in short, for Republicans to do unto Clinton痴 nominees as Democrats had done unto him in 1987. House Majority Whip Tom DeLay (R-Tex.) went even further and said that Republicans should begin efforts to impeach liberal federal judges.[17]

The rhetoric motivated Republicans to launch an unprecedented slowdown of the confirmation of Clinton nominees. Opposition home-state Republican senators used their 澱lue slip power to block hearings. As a result, one in ten seats on the federal judiciary were vacant by the end of 1997 (with 26 seats vacant for at least 18 months), prompting President Clinton to declare a 砺acancy crisis.納18] At the urging of Chief Justice William Rehnquist, Republicans backed off from the slowdown, but then revived it in 1999 as the prospect of a Republican victory in the 2000 election loomed. Once again, Orrin Hatch (the Republican chair of the Senate Judiciary Committee) allowed opposition home-state Republican senators to block Clinton痴 judicial nominees. When Clinton left office in January 2001, 42 of his judicial nominees remained unconfirmed (38 of whom had never received a hearing). In Clinton痴 eight years, the Senate had blocked 114 of his lower court nominations and confirmed 366. In comparison, the Senate blocked none of Nixon痴 lower court nominations and confirmed 224 (it did block two of his Supreme Court nominees). Even during the Reagan administration, the Senate blocked only 43 lower court nominees and confirmed 368.[19]

After the 2000 presidential election, when Republicans briefly controlled the Senate, Orrin Hatch announced a dramatic re-interpretation of the blue-slip procedure. Though Hatch had aggressively used the procedure to allow opposition Republicans to block nominees from a Democratic president under Clinton, he now announced that opposition senators (those not of the same party as the president) could no longer use blue-slips to prevent hearings. This would have precluded Democrats from exercising the same power against Bush痴 nominees that Republicans had routinely used against Clinton痴. The turnabout was blatantly political, and Senate Democrats reacted with fury. All 50 signed a letter of protest. Before the rule change could take effect, Sen. James Jeffords (R-Vt.) defected from the Republican Party and became an independent, thereby throwing control of the Senate to the Democrats. But when Republicans regained control of the Senate after the 2002 midterm elections, Hatch followed through with his earlier threat to alter the blue slip procedure. Within four months, the change allowed the Senate Judiciary Committee to hold hearings on Ninth Circuit nominee Carolyn Kuhl over the objection of Democratic home-state Senator Barbara Boxer of California. In a letter to Hatch charging him with disregard of senatorial prerogatives, Boxer complained that his 澱lue slip policy is apparently guided more by who is in the White House than by the powers accorded U.S. senators.[20]

The Republican痴 re-interpretation of the blue slip procedure prompted Senate Democrats to resort to the filibuster to block what they felt to be the most extreme of Bush痴 judicial nominees (totaling six to date). Despite these filibusters, the vacancy rate on the federal judiciary has dropped to its lowest point in 13 years. Republicans themselves used a filibuster to block LBJ痴 nomination of Abe Fortas to be Chief Justice of the Supreme Court in 1968. Minority Republicans also launched a filibuster against a foreign-aid bill in October 2001 in retaliation for what they called 泥emocratic stonewalling of Bush痴 judicial nominees. In response, Democrats noted that they had only controlled the Senate for a little over four months and that in that time several events had intervened to slow the legislative agenda: the summer recess, the 9/11 terrorist attacks, and the anthrax scare on Capitol Hill that had immobilized Congress. Nonetheless, Republicans clearly hoped that in the aftermath of 9/11 they could put Democrats on the defensive and, with Bush enjoying the highest public approval ratings of any president since polling began, mobilize public support for confirmation of conservative judges (even claiming that they were necessary to maintain national security in the wake of the terrorist attacks). To be sure, Democrats used some of the same tactics that Republicans had under Clinton, but now Republicans made 泥emocrat obstructionism a major theme of the 2002 midterm elections.

All of this brings us to the current debate over the Democrats use of the filibuster against judicial nominees. President Bush calls it 屠ust plain wrong and portrays it as an ongoing example of obstructionism in which 殿 partisan minority of senators has thwarted the will of the majority and stood in the way of voting on superb judicial nominees.納21]

What should be done?

Despite the potential for abuse, I say 渡othing. The power of federal judges to mold judicial policymaking is profound. Democrats have confirmed the vast majority of Bush nominees. They have targeted for filibuster only the ones they allege to be the most ideologically extreme. They will have to pay a political price if they abuse the filibuster, and may eventually find it being used against their nominees, but it is a legitimate tool for withholding the Senate痴 consent on judicial nominees. Presidents can always respond with a temporary judicial recess appointment, as Bush has recently done with Charles Pickering and William H. Pryor, Jr.[22]

Politics can never be entirely removed from the selection and confirmation of federal judges, nor should it be. Despite Chief Justice John Marshall痴 admonition that courts are 鍍he mere instruments of the law, and can will nothing,納23] history has shown us otherwise: courts have willed a great deal. It is only fitting that judicial nominees who, if confirmed, will enjoy life tenure and possess broad policymaking powers, be subjected to exacting public and political scrutiny. Presidents use ideology as a factor for choosing nominees, and the Senate should be able to use it as a factor for withholding consent.

We live in a period when support for the two major parties is almost evenly divided. The 2000 election provided no mandate. A president who received fewer popular votes than his rival is in a weak position to bring about a major ideological transformation of the federal judiciary容specially when the Senate remains so closely divided. All of that may soon change. If the electorate chooses President Bush for another four years and gives the Republicans a filibuster-proof majority in the Senate, he will be free to re-make the federal judiciary in his image (much as Franklin Roosevelt did when he and fellow Democrats enjoyed a clear mandate in the 1930s and 40s). Until then, threat of the filibuster is one way to help insure the nomination of moderate, consensus nominees.



[1] The one exception is the D.C. Circuit.
[2] Quoted in David M. O達rien, Judicial Roulette: Report of the Twentieth Century Fund Task Force on Judicial Selection (New York: Priority Press, 1988), 33.
[3] Quoted in O達rien, Judicial Roulette, 23-24.
[4] For an excellent discussion of the debates over judicial selection at the Constitutional Convention, see: James E. Gauch, 典he Intended Role of the Senate in Supreme Court Appointments, 56 University of Chicago Law Review (1989), 337ff.
[5] W.W. Abbot, ed., The Papers of George Washington (Charlottesville: University Press of Virginia, 1989), 401.
[6] Stephen L. Carter, The Confirmation Mess: Cleaning Up the Federal Appointments Process (New York: Basic Books, 1994).
[7] For a more complete discussion of this, see: John Anthony Maltese, 鼎onfirmation Gridlock: The Federal Judicial Appointments Process Under Bill Clinton and George W. Bush, 5 Journal of Appellate Practice and Process (Spring 2003), 4-5.
[8] Richard Fleisher and Jon R. Bond, 鼎ongress and the President in a Partisan Era, in Polarized Politics: Congress and the President in a Partisan Era, ed. Jon R. Bond and Richard Fleisher (Washington, D.C.: CQ Press, 2000), 3-4.
[9] Gary C. Jacobson, 撤arty Polarization In National Politics: The Electoral Connection, in Polarized Politics, ed. Bond and Fleisher, 19-23.
[10] Gary C. Jacobson, 典he Bush Presidency and the American Electorate, paper delivered at a conference on 典he George W. Bush Presidency: An Early Assessment, Woodrow Wilson School, Princeton University, April 2003, 4 and 13.
[11] For a full discussion of this, see: Joseph A. Pika and John Anthony Maltese, The Politics of the Presidency (Washington, D.C.: CQ Press, 2004), 86-91.
[12] For full accounts of these nominations, see: John Anthony Maltese, The Selling of Supreme Court Nominees (Baltimore: Johns Hopkins University Press, 1995), and Scott H. Ainsworth and John Anthony Maltese, 哲ational Grange Influence on the Supreme Court Confirmation of Stanley Matthews, 20 Social Science History (1996), 41-62.
[13] Gregory A. Caldeira, Marie Hojnacki, and John R. Wright, 典he Lobbying Activities of Organized Interests in Federal Judicial Nominations, 62 Journal of Politics (2000), 51-69.
[14] Several studies of the early voting behavior of Clinton痴 judicial appointees seem to confirm the moderation of his choices. See, for example: Ronald Stidham, Robert A. Carp, and Donald Songer, 典he Voting Behavior of President Clinton痴 Judicial Appointees, 80 Judicature (July-August 1996), 16; Sheldon Goldman and Elliot Slotnick, 撤icking Judges Under Fire, 82 Judicature (May-June 1999), 265; Nancy Schere, 鄭re Clinton痴 Judges 前ld Democrats or 鮮ew Democrats? 84 Judicature (November-December 2000), 151.
[15] Quoted in James Bennet, 湯Judicial Dictatorship Spurns People痴 Will, Buchanan Says, New York Times (30 January 1996), A9.
[16] Quoted in Henry Weinstein, 泥rive Seeks to Block Judicial Nominees, Los Angeles Times (26 October 1997), A3.
[17] Quoted in Michael Kelly, 笛udge Dread, New Republic (31 March 1997), 6.
[18] Quoted in Ronald Brownstein, 敵OP Stall Tactics Damage Judiciary, President Charges, Los Angeles Times (28 September 1997), A1.
[19] Statistics for Franklin Roosevelt through George W. Bush can be found in a chart accompanying Neil A. Lewis, 釘itter Senators Divided Anew on Judgeships, New York Times (15 November 2003), A1.
[20] Quoted in Jonathan Groner, 鉄enate Democrats Grill 9th Circuit Nominee, The Recorder (2 April 2003), 4.
[21] Quoted in Lewis, 灯Bitter Senators Divided Anew on Judgeships, A1.
[22] Under Article II, section 2 of the Constitution the president has the power 鍍o fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Unless confirmed by the Senate, such recess appointees must step down at the end of the session. Presidents have made some 300 judicial recess appointments, including 15 to the Supreme Court. George Washington began the practice with three judicial recess appointments between the sessions of the First Congress. As the Ninth Circuit Court of Appeals wrote when it upheld the constitutionality of judicial recess appointments in 1985: 鄭t the time of these appointments, Edmund Randolph and two contributors to The Federalist, Alexander Hamilton and John Jay, served as members of President Washington's Cabinet. There is no evidence that they doubted the constitutionality of the recess appointments. Moreover, the district court judges were confirmed upon the return of the Senate without objection to their recess appointments. 1 Executive Journal of the Senate 38, 40 (1790). It is further noteworthy that President Washington's recess appointments of Justice Johnson in 1791 and of Chief Justice Rutledge in 1795 went unchallenged. One commentator has aptly noted that 奏he most significant historical fact is that by the end of 1823, there had been five recess appointments to the Supreme Court. During this period, when those who wrote the Constitution were alive and active, not one dissenting voice was raised against the practice. Note, Recess Appointments to the Supreme Court -- Constitutional But Unwise?, 10 Stan. L. Rev. 124, 132 (1957). U.S. v. Woodley, 751 F.2d 1008 (1985) at 1010-11 (footnotes omitted). More recently, presidents Eisenhower and Kennedy alone made 53 judicial recess appointments.
[23] Osborne v. Bank of the United States, 9 Wheat. 738 (1824).


John Anthony Maltese is a professor of political science at the University of Georgia.

April 15, 2004


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CONTRIBUTOR

JURIST Contributor Dr. John Anthony Maltese is an associate professor of political science at the University of Georgia. His books include The Selling of Supreme Court Nominees (Johns Hopkins, 1995) (winner of the C. Herman Pritchett Award), Spin Control: The White House Office of Communications and the Management of Presidential News (UNC Press, 1992) (winner of a Frank Luther Mott Award), and, with Joseph A. Pika, The Politics of the Presidency (CQ Press, 6th ed. 2004). He also writes extensively about classical music and in 1996 won a Grammy Award from the National Academy of Recording Arts and Sciences.