Observers of judicial selection processes and politics through three years of the Bush administration can find ample fodder for making the argument that the system is dysfunctional, in disarray, and needs to be altered. Commentators of every political stripe, from across the ideological spectrum, opine that selection processes have never been more politically driven—and partisans on both sides of the Senate aisle bemoan that same conclusion.

Many bullet points can be made to support such assertions. During the first year of Bush’s presidency, when the Democrats regained control of the Senate, the pace of Judiciary Committee hearings was relatively slow on nominees who were perceived to be controversial candidates. In part, perhaps, this could be attributed to the time taken to accomplish the Senate’s reorganizational transition and, in due course, the wake of 9-11 when the press of security concerns dominated the institution’s (and the Judiciary Committee’s) agenda. Eventually, some of the most controversial nominees did, indeed, get hearings and others were scheduled. Extremely rare negative Committee votes along strict party lines, however, denied the nominations of Charles Pickering and Priscilla Owen in the 107th Congress, with Republicans crying foul, contending that these nominations should still be reported out on the Senate floor where, it was felt, they could gain the necessary defection of Democratic votes to consummate the appointments.

Once the Republicans regained majority control of the Senate, by the slimmest of margins, it became possible to hold hearings on virtually all of the pending judicial nominees and, indeed, to have them reported favorably, still along strict party lines for those who were the most controversial, for a vote on the Senate floor. Indeed, at the opening of the 108th congressional session, the President renominated all of the nominees not acted upon in the preceding Congress. This action included the bold resubmission of the nominations of Pickering and Owen who, the administration contended, were indistinguishable procedurally from any of the other resubmitted candidates, including those who had not even had hearings, since their candidacies had not led to a final vote by the Senate on the merits.

But the Senate has proven not to be filibuster-proof for the Republicans who, to date, have failed to muster the 60 votes necessary to gain an up or down decision on the Appeals Court nominations of Miguel Estrada (since withdrawn), Priscilla Owen, William Pryor, Charles Pickering (since seated on the 5th Circuit bench via a rare Recess Appointment) and, most recently, Carolyn Kuhl and Janice Rogers Brown.

Filibustering judicial nominees is far from business as usual in the Senate and, indeed, was a tactic that never even came into play in the celebrated nomination battles over the candidacies of Supreme Court nominees Robert Bork and, later, Clarence Thomas. In addition to the aforementioned Circuit nominees, the Democrats seem poised to filibuster efforts at seating other red flag appeals court candidates, most prominently Claude Allen and Brett Kavanaugh, were their nominations ever to be brought to the Senate floor. In addition, were an effort made to obtain floor votes on four Sixth Circuit nominees from Michigan, all of whom are opposed by Michigan’s two Democratic senators, they, too, would be prime candidates for filibusters.

Several unusual intrigues have also surrounded these Senate proceedings. Considerable rhetoric from the Republican leadership has questioned the very legitimacy of utilizing filibusters for judicial nominations and there has been considerable discussion about changing the traditional Senate filibuster rules. Proposals have ranged from an outright ban on the use of filibusters with respect to judicial nominees to changing the number of votes needed to impose cloture and bring a filibuster to an end. The most elaborate of these schemes proposes a sliding scale for cloture votes, diminishing the number of votes needed to cut off debate with each effort to do so, and culminating in a situation where a simple majority could have its way. Some have likened the movement to override a filibuster with only a majority vote as a “nuclear option.” In mid-November 2003, the Republicans turned the Democrats’ filibustering approach on its head by staging an around the clock debate on the treatment of Bush’s judicial nominees, termed the “Justice for Judges Marathon.” In a revelation perhaps more worthy for a script on the television show West Wing than for real life governance, it was learned that Fox News was the “producer” of this Republican talkathon and, indeed, had pitched the idea in the first place to the Republican Senate leadership.

Not to be outdone, the Democrats, too, became embroiled in extracurricular newsworthy matters when staff memos outlining strategies and tactics for stalling and opposing designated Bush nominees were obtained from an unsecured Judiciary Committee computer server and made public. The Bush administration’s most recent move, at the time of this writing, is the seating of embattled nominee Charles Pickering as a Recess Appointment to the 5th Circuit Court of Appeals, a bold initiative that will only serve to further fan the flames of contentiousness and discord of judicial selection politics.

With this recent history as backdrop, it may seem the most natural of conclusions to say that the system for choosing federal judges is completely broken and has surrendered to partisan politics of the worst kind. Regardless of which side started it and who is fingered for blame, politicians and members of the public they serve would appear well justified in calling for drastic reform, a fix, a major overhaul of the business of selecting of federal judges.

While seemingly well justified by the evidence presented above, that conclusion, for a number of reasons, would be wrong.

First, to state the obvious: The judicial selection process has always been political and was conceived as such by its framers. The process engages the practice of politics at two levels. On one level, politics is played out inter-institutionally, with Senators concerned about the seating of judges in their home states and, consequently, desirous of meaningful consultation with the White House. On another level there is politics involved in the President’s choices regarding whom he wishes to appoint to lifetime judgeships—though his choices are constrained by the Senate’s obligation to provide advice and consent on each nominee.

Both of these forms of politics have long histories. Thus, debate at the Constitutional Convention focused on the relative roles of the executive and the legislature in choosing judges. The ultimate form that the advice and consent provisions of the Constitution took represents an important compromise fashioned at our founding. While patronage more so than policy has played an historic role in nomination politics, that has not always been the case. There is ample evidence of Franklin Roosevelt’s efforts to place New Dealers on the courts. More recently, in the Nixon administration, we find the clearest statement and example of the potential importance of policy concerns in choosing judges. Thus, in a memo endorsed by the President, White House aide Tom Charles Huston wrote, “Through his judicial appointments, a President has the opportunity to influence the course of national affairs for a quarter of a century after he leaves office.”

During the Carter Administration, the President’s attempted inroads on the advice and consent prerogatives of home-state senators (through the issuance of Executive Orders outlining criteria for his nominees, and the establishment of the U.S. Circuit Judge Nominating Commission for the Appeals Courts and a recommendation for similar senatorially established commissions for identifying District Court candidates) further documents the politics of judicial selection processes. In this context, we may perhaps view current judicial selection controversies over the President’s focus on policy considerations in his nominees, as well as dissatisfaction expressed by Democratic home state senators with the consultation that they have received from the White House, as different in degree but not, fundamentally, in kind from what has occurred in the past.

More to the point, it is ultimately an empirical question whether the judicial selection process is working and, to answer that question, the preponderance of the facts should count rather than the headline grabbing exemplars of acrimonious appointment politics that have dominated public discourse. As an empirical matter, we are far from a crisis. This was pointedly brought home to me in an interview about a year ago with a high-ranking Democratic source in the Senate who chided me when I raised the specter of a judicial selection crisis. “Those who say, ‘Oh, it’s a crisis. Oh it’s a crisis. It’s a continuing crisis. Oh the crisis is getting worse, things are deteriorating, are wrong. Because, practically, we actually made progress in the last year and a half, in what should have been the most adversarial setting of all. We made what I would characterize as significant progress. . . . So portraying it as a situation that has gotten worse is just playing into their argument.’” More recently, David Savage underscored in the Los Angeles Times of November 5, 2003, “The vacancy rate on the federal bench is at its lowest point in 13 years. . . . The intense partisan battle over a handful of judges aside, Bush has already won approval of more judges than President Reagan achieved in his first term in the White House. . . . Bush has a better record this year than President Clinton achieved in seven of his eight years in office.”

At the time of writing, there are 46 vacancies on the 877-member Article III federal bench, a vacancy rate of approximately 5%. The absolute number of vacancies never fell below 50 during the eight years of the Clinton Administration, and the 5% figure actually represents progress during the first year of the current 108th Congress. Indeed, 60 vacancies (representing a 7% vacancy rate) existed at the end of Bush’s first two years in office, a period co-terminus with the 107th Congress. At the close of the 107th Congress, 25 coveted Courts of Appeals positions were vacant, with that number diminishing to 17 today.

Also instructive are direct comparisons between Bush’s appointment success and that of Clinton before him. Again, assertions that judicial selection processes have escalated through a downward spiral are not borne out by the facts. In his first term in office, Clinton appointed 169 District Court judges, while seating 136 in his second term. In just three years, Bush has appointed 139 District Court judges, with a chance to equal Clinton’s first term while already surpassing his second. More pointedly, Bush’s record of critical Courts of Appeals successes in three years already equals or surpasses that of Clinton before him. Thus, while Clinton seated 29 circuit judges in his first term in office and 32 in his second term, George W. Bush has already appointed 31 Courts of Appeals judges (including the Pickering Recess Appointment). Empirically, in terms of consummating judicial appointments, the assertion that things have gotten much worse in the Bush years simply does not wash.

Other metrics lend further credence to this claim. As a practical matter, a finite number of judgeship appointments can be processed in any given year, regardless of how many nominations the President sends to the Senate. Arguably, this number should decrease in the 107th and 108th Congresses since the Bush Administration’s removal of the ABA from its own vetting processes for nominees has slowed the congressional facets of the process down because the Democrats insist on having the ABA evaluation in hand before moving forward on nominees. In addition, it is historically commonplace for Senate hearings on judicial candidates to include multiple District Court nominees for every Appeals Court nominee under consideration—regardless of the nomination behavior of the President. Looking back at the 24 years prior to the current administration (which includes the presidencies of Clinton, Bush I, Reagan, and Carter) an average of 158 District Court judges have been seated each term and 39 Appeals Court judges. These figures are in line with what President Bush has accomplished in three years. On average, over the 24 years prior to Bush II, Appeals Court appointments accounted for 19.7% of all lower federal court appointments. The figure for George Bush is presently 18.2%. Of the past five Presidents, Bill Clinton’s proportion of Appeals Court appointments (16.7%) has been the lowest.

What of the celebrated controversies that have captured the public’s perception of judicial appointment politics during the Bush Administration? It is fair to say that judicial appointments occur largely in a zone of senatorial indifference save, perhaps, for the particular interest of home state senators. The nomination controversies we have witnessed through the Bush Administration (and, perhaps in some instances, during the Clinton years) have breached that zone. For the most part, the controversies have swirled around nominations to the Courts of Appeals. They have involved candidacies that, without entering into a discussion of their individual merits, raised, indeed sometimes waved, a red flag before Democratic senators. The decision to filibuster some of these candidates when they reached the Senate floor is not a decision that any senator takes lightly. Filibusters have costs and filibusters have consequences for senators in an institution that is known to act with comity among its colleagues. Yet the filibuster is an appropriate legislative tactic sanctioned by Senate rules and it is difficult to get around that.

Just as the choice to filibuster represents a considered judgment by senators, so too does the president’s choice of a nominee. Instances where those choices cross the line of senatorial indifference can result in efforts at obstruction and delay in the advice and consent process. At times, as we have witnessed, such obstruction and delay can lead to the candidate’s defeat.

None of this means, however, that the process is not working. Indeed, a preponderance of the evidence suggests that overall the process is working well. Can the process work better and can the judicial branch ever attain full employment? The prospect is unlikely because the realities of nomination politics suggest that, at times, controversy and contentiousness are politically beneficial and worth their costs. Still, I am reminded of the words of one senatorial aide about a year ago when assessing the accomplishments in the judicial appointment realm: “There are vacancies, too many vacancies for our taste. There are vacancies that have been around too long. But with no cooperation, a lot of progress was made. With a modicum of cooperation and moderation, there wouldn’t be a problem.”

April 15, 2004

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