The Politics of Judicial Confirmation
By Stephen Murdoch
Photographs by Patrice Gilbert
When it comes to judicial appointments, the Democrats and Republicans rarely speak words of compromise these days despite the ever-increasing delays in appointing judges that have created a “vacancy crisis” on the federal bench.
According to the Administrative Office
of the United States Courts, as of April 26, 90 federal judgeships
were vacant out of a total of 862. Twenty-nine of the vacancies were
in the circuit courts, 60 in the district courts, and one in the Court
of International Trade. Not all districts and circuits need more judges,
but quite a few suffer from serious workload problems.
Unfortunately, partisan tensions over filling the vacancies will not abate anytime soon. Many Washington lawyers well versed in the machinations of the judicial appointment process believe Democrat– Republican relations are as bad as they’ve been in a long while. “I think we’re at the depth of partisan acrimony about the judicial selection and confirmation process,” says Ron Weich, a partner at Zuckerman Spaeder LLP and formerly chief counsel to Senator Edward Kennedy on the Judiciary Committee.
Improving the judicial appointment process is a common subject in Washington, especially in the wake of particularly contentious confirmation hearings. The shelves of Washington think tanks are full of studies and commissions authorized by bar groups and the political parties. Eminent lawyers and judges, too, have testified on the Hill repeatedly, offering advice to the Senate Committee on the Judiciary. Nevertheless, the federal machinery appointing judges to the bench remains cumbersome and contentious, often leaving both political parties unhappy with the results.
The Washington Lawyer has called upon six lawyers who have worked on appointments to explain why partisan relations are such a mess. These attorneys—three conservatives and three liberals—spoke to the magazine about the slowdown in appointing judges, the sore points in bipartisan politics, and whether candidates’ ideologies should be considered during the process. Finally, they proposed commonsense ways to improve filling vacant judgeships.
From the time a federal judgeship becomes available, usually through death or retirement, to the moment a judge is appointed is unavoidably long. The White House and the Department of Justice must sift through scores of candidates—vetting the more serious—for hundreds of judgeships, while liaising with home state senators’ offices, gubernatorial staffs, and their party organizations. More often than not the president does not know the final candidate, who has arisen from the primeval ooze of local and state politics.
At the Senate Judiciary Committee, the number of parties pushing favored candidates is so great that the chairman, to avoid a deluge of telephone calls, often announces confirmation hearings without giving much notice. An insufficient number of staffers collect courtesy “blue slips” from home state senators, allowing the confirmation to go forward, and beaver away at piles of paperwork from the FBI and the Department of Justice. With luck the slate of candidates the chairman cobbles together for confirmation hearings will satisfy senators, the White House, and the Administrative Office of the United States Courts, ever conscious of its overworked districts and circuits.
This complicated, deliberative process is particularly slow during split governments wherein one party controls the Senate while the other has the White House. The bipartisan Constitution Project reports that between 1977 and 1998 Senates during unified governments were able to confirm nominees, on average, in only 59 days. However, Senates during split governments took an average of 121 days to confirm successful candidates. Unsuccessful candidates to the federal bench followed the same pattern: 103 days on average for a candidate to fail during a unified government versus 238 days during divided governments.
The year before a presidential election
is often especially slow, too. At that time the parties in the Senate
will delay confirmations in the hope that they will win both the White
House and control of the Senate.
“Bottom line and most definitively, you go into an election, like the presidential one in 2000, and each side thinks they are going to win,” says Eleanor Acheson, who was assistant attorney general during the Clinton administration. “It’s very tempting to say, ‘Well, if we win, we’ll get all of our appointments, so why should we compromise now?’ ”
Even after the election, says Acheson, it can be harder to get up and running than it appears from the outside. “Transition is like molasses,” she says. “It’s just very hard to get people in place. It takes much longer than you think.”
The sad reality is, these cumbersome bureaucracies are becoming even slower at nominating and confirming judges. According to the Constitution Project, of the four presidents from 1977 to 2000, Carter was the fastest at nominating judges, then Reagan, Bush, and finally Clinton, who was the slowest. During the 105th Congress ending in 1998, it took President Clinton 75 more days to nominate a district or circuit court judge than it did President Carter.
The Senate is also slowing down. On average the Senate took 78 days to confirm, deny, or let expire a judicial nomination during President Carter’s administration. By the Clinton administration, the Senate took 164 days to act on a nominee.
Now presidents may also have a harder time appointing judges than they did in the past. Ninety-eight percent of President Carter’s successful nominations were appointed on his administration’s first attempt to fill a district or circuit court vacancy. Although the Constitution Project has not yet finished its study of the last two Clinton years, for a term and a half the Clinton administration only had 73 percent of its successful nominations confirmed the first time. Carter never had to make more than two nominations to fill a vacancy, whereas Clinton had to make up to four.
Tit for Tat
One possible reason for increased delays in judicial appointments is the heightened importance lawmakers and the public place on judicial nominees, which in turn contributes to more political maneuvering. The appointment process was once a lower key affair than it is today. When President Roosevelt nominated Felix Frankfurter for the Supreme Court in 1939, for instance, it was not customary for nominees to testify before the Judiciary Committee. But when Frankfurter’s views were misrepresented by other testimony, the White House advised him to appear in person. Frankfurter hesitated at first, fearing he would appear to be lobbying for the position. Frankfurter eventually testified, dispelling innuendoes of communist sympathy and winning his confirmation.
Today it would be remarkable for a Supreme Court nominee not to show up for his or her confirmation hearings fully prepped. During nominations to the Supreme Court and sometimes to circuit courts as well, administrations go into campaign mode, with key staff preparing for the hearings for weeks or even months. Partisan special-interest groups ratchet up their spin machines, too, with dizzying, issue-blurring effects. And during confirmation hearings, constituents follow closely via television and the Internet, immediately swamping the Senate Committee on the Judiciary with advice, opinion, and derision. The pressure on Senate offices is immediate and intense.
Some Washington lawyers argue that the increased importance and scrutiny of the judicial appointment process is a result of the progress made in the 20th century. Despite the partisan bickering, the actual ideological gap between the parties, particularly in the Senate, is not as wide as it has been in the past.
“It’s not as if we’re debating about whether we should become a socialist nation or we should stick with capitalism,” says Michael O’Neill, a law professor at George Mason University and former general counsel to the Judiciary Committee. “It’s not as if we’re debating about whether we should have an independent judiciary or not.”
The parties may therefore feel the need to differentiate themselves, knowing all the while that the fighting and finger pointing can be done relatively safely. Moreover, the battles that remain—often over individual rights and social justice issues such as abortion, the death penalty, and women’s rights—are focused more on the courts now than in the past because legislatures have not been as responsive. “As people began raising the social justice issues in the courts, in part because they ceased to be able to make progress in the legislatures, everybody on every single side of the issues focused on the courts as a battleground,” says Acheson.
Who people think is to blame for the contentious environment often reflects their political persuasion. Ron Weich believes the Republicans shoulder the responsibility for the tensions, maneuvering, and delay in the appointment process today. “My personal view is that the approach of the Republican-controlled Senate during the Clinton administration has poisoned the waters in a manner that makes it difficult for Senate Democrats now to abide by a set of rules or deadlines,” he says.
For O’Neill, who worked for Senator
Orrin Hatch, much of the partisan tension dates back to the Robert
Bork nomination. O’Neill notes that Bork had been a professor
at Yale, solicitor general of the United States, a partner at a national
law firm, and the author of a seminal text on antitrust law. In short,
“He was worthy to wear the robe.” Add in the hearings for
William Rehnquist, when he was promoted to chief justice, and Clarence
Thomas, and the Republicans became bitter, feeling they were “outflanked”
and that their candidates were targeted for “narrow ideological
reasons.” Thus, when the Republicans took control of the Senate
during the Clinton years, it was payback time. “You know, what
comes around goes around to a certain extent,” O’Neill
Jan Baran, formerly general counsel to the Republican National Committee and now a partner at Wiley Rein & Fielding LLP, sees a problem with the tit-for-tat attitude that results from both parties feeling aggrieved. “There was, in my view, unwarranted extensive delay during the last half of the Clinton administration, and now we’re potentially seeing the beginning of similar delays in the Bush administration and its relationship with the Senate.” He did not think the parties should delay the appointment process three years ago, nor does he think they should now.
It may be too early to tell if the Democratic-controlled
Senate of today is mired in delay tactics. The past year in the Senate
has been a strange and disrupted one. When Senator Jim Jeffords brought
the Democrats to power, it took time to restructure the Judiciary Committee
and get back to work. September 11 was also a disruptive influence,
focusing the Senate’s attention on defense and terrorism and
slowing all other work. Lastly, the Bush administration’s decision
to cut the American Bar Association out of the candidate screening
process prompted Senator Patrick Leahy, the chairman of the Judiciary
Committee, to use the organization’s services, which will further
lengthen the confirmation process.
Despite a difficult year, and the apparent gridlock following Charles Pickering’s denied confirmation, Marcia Greenberger, copresident of the National Women’s Law Center, notes that the Senate confirmed 42 judges before getting around to Pickering. That’s more, she says, than in some years that the Republicans controlled the Senate.
That Judge Pickering’s nomination was denied does not necessarily indicate that Democrats and Republicans are at loggerheads, says Greenberger. “I don’t think there is a system failure if a president felt strongly about somebody, nominated that person, and a majority of the senators on a committee charged with reviewing that nomination disagreed on appropriate grounds.”
One of the sorer points of contention between the Democrats and Republicans is the debate over whether or not a nominee’s ideology should be openly considered during Senate confirmation hearings. The Constitution does not say that presidents may consider a candidate’s ideology, but senators may not. In practice, however, there appears to be a double standard. President Bush can pledge during his campaign to nominate more judges like Justices Scalia and Thomas, but—at least publicly—the Senate is supposed to stick to a candidate’s legal qualifications.
To Fred McClure, a former assistant for legislative affairs to President George H. W. Bush and now a shareholder at Winstead Sechrest & Minick P.C., there is nothing wrong with the president considering the ideology of potential candidates. “You would expect a Republican [president] to first of all nominate people who have a history of being Republican in nature,” he says. And the same is true for a Democratic president. “You wouldn’t expect a Bill Clinton under general circumstances to go get somebody Ronald Reagan put on the Federal District Court bench and elevate them to a higher court.”
McClure and other Washington lawyers, however, emphasize that presidents do not choose candidates for the federal bench by grilling them on particular issues. The vetting of candidates’ political philosophy only goes so far. “If some individual were to walk in to the White House and say, ‘I’ve made up my mind on the abortion issue and you can count on me,’ I’d think that would disqualify the individual from consideration for even nomination,” says Jan Baran.
But if the executive branch expressly takes a nominee’s political slant into account, why is it taboo for the Senate to consider it during confirmation hearings as well?
During his first hearing last year as chairman of the Judiciary Committee’s subcommittee on administrative oversight and the courts, Senator Charles Schumer argued that his fellow lawmakers should expressly consider nominees’ ideologies during confirmation hearings. During opening remarks, the senator stated that not taking ideologies publicly into account has led the Senate into an “escalating war of gotcha politics,” wherein senators sift through nominees’ pasts looking for proxies to deny candidates judgeships based on other grounds.
At a recent Federalist Society conference, Senator Jon Kyl criticized Schumer’s hearings. He argued that the president—elected by the “mainstream” of the country—should decide who is ideologically appropriate, and not the senators. “Senator Schumer’s constituency is not as broad—shall we just put it that way—as the national constituency,” he said.
The fact is, though, senators do consider judicial nominees’ ideologies, but avoid appearing to do so during public hearings. Fred McClure believes that “ideology has always played a part in the confirmation process. It’s just that it sometimes manifests itself in different ways as the process goes forward.”
In part, senators may fear being labeled
partisan and reliving the Bork nomination, wherein the Senate delved
in-depth into the nominee’s judicial philosophy. They may also
feel that investigations into ideology may threaten judicial independence.
But what side of the debate individual senators line up on—for
or against openly considering ideology—may also depend on which
party controls the White House. As Michael O’Neill puts it, if
it is your “ox [that] is being gored,” you are less likely
to want ideology to be considered. “If you’re the one appointing
the judges, you don’t necessarily want your judges’ ideology
being looked at.”
O’Neill also thinks Americans are culturally uncomfortable discussing ideology in public. Similar to conversations about class, talking about ideology simply “rubs people the wrong way.” Moreover, senators’ personal feelings are more liable to become hurt and bruised when they have personally championed candidates who are rejected. “When you tell Senator Lott . . . we’re going to reject your buddy Pickering, it becomes personalized,” says O’Neill. It’s all the more frustrating for senators, he says, when a candidate’s ideology, rather than his or her legal qualifications, is the main reason why the nomination fails.
Most of the attorneys the Washington Lawyer interviewed felt that ideology should only matter when the nominee is a rigid ideologue. No one lives in an opinion-free vacuum, they note, and it would be unrealistic to think judicial nominees are any different. Opinions, even strongly held convictions, should not bar someone from the federal bench.
Eleanor Acheson says that when she was at the Department of Justice, her office sought out candidates who would apply the law, regardless of personal belief. “I think the point of inquiry needs to be—regardless of what the person would do if he or she were czar—how is he or she going to be as a judge?” says Acheson.
Marcia Greenberger says that though she may be interested in a candidate’s view on abortion, for instance, she is more concerned about the person’s view of whether or not the law protects a woman’s right to choose. Greenberger notes that Justice Brennan was personally opposed to abortion, but supported Roe v. Wade. “To me,” she says, “the issue is much more a justice’s approach to the law or a potential judge’s approach to the law and the context of the Constitution. One might inform to some degree the other, but they are different inquiries.”
Room for Improvement
Jan Baran thinks the acute partisan soreness felt on the Hill today is a result of America’s political “equipoise,” a situation in which neither party has had the clear upper hand in recent federal elections. Representatives and senators, Baran points out, have won seats by incredibly close margins over the last six to eight years. Moreover, the country has not elected a president with over 50 percent of the vote since 1988, and the presidential election of 2000 was “historically close.”
“There are different views about government and politics that seem to be extremely evenly divided among our society,” says Baran. “Perhaps part of that is spilling over in this area [of] judicial appointments and confirmations.”
The acrimonious feelings generated during the Clinton years have left Hill staffs, politicians, and Washington lawyers bitter, but neither party has the power to push its judicial candidates through the system unilaterally. The question before the political and legal community is how to surmount these ill feelings given that the parties share power in a divided government and there are many vacancies to be filled.
Baran says that the sides should come to an agreement. “They’re going to [have to], on the one hand, atone for the sins of the fathers and, on the other hand, move forward.” To Baran compromise is more likely now that Clinton is out of office, but of course, many of the Republican senators who battled against the president remain in office. It may be hard for the Senate-controlling Democrats to be magnanimous.
The crux of the problem is not a lack of good ideas for improving the judicial appointment process—a Constitution Proj-ect report included recommendations for change, as have many other studies and commissions authorized by bar groups and the political parties—but a paucity of political will to change. “I continue to believe that the recommendations and the timetables in the Constitution Project report are valid, but to implement those recommendations there needs to be a process for taking account of the distortions that occurred over the previous six years,” says Ron Weich.
To assuage some of the bitterness, Baran suggests that some of the Democrats’ candidates could be appointed by the Bush administration. It’s an idea bandied about by many people in Washington—not surprisingly, the Democrats in particular.
But Michael O’Neill questions whether or not such a gesture by Bush would actually help the situation, or merely be symbolic. He notes that Bush has already appointed a couple of Clinton nominees without any sign that partisan tensions are easing. He says, too, that the antagonism is not really between the White House and Senate Democrats, but between the parties in the Senate.
As a result, both parties in the Senate need to get past their sense of being aggrieved and work together on concrete ways to regularize the process. Weich proposes that, out of fairness to the president and his nominee, in most instances senators should give candidates a hearing and a full Senate vote.
Having worked on judicial nominations at the Justice Department during the 1990s, Eleanor Acheson also has concrete ideas for improving efficiency. She found that it helps for the Senate Judiciary Committee to be upfront and clear about what it needs from the administration for each candidate. Changing the type of requests every time only slows the process down.
“I have to say, as chairman, Senator Hatch made things very clear,” says Acheson. He wanted all of a candidate’s unpublished opinions that had anything to do with a long list of hot-button subjects, such as abortion, sentencing, and the death penalty. Although the list was extensive, it helped Acheson’s staff to know what kind of information to elicit from potential nominees straightaway.
Acheson also urges the Senate to have at least one hearing a month, in an “absolutely predictable, methodical way,” making sure to include one circuit court nominee and three or four district court nominees. Furthermore, she advises a two-track system to speed up the process. The first track would be for nominees unlikely to have problematic confirmations. The second track would include nominees who will provoke debate. By focusing on the less problematic nominees first, Acheson believes, the Senate could reduce the number of vacancies significantly.
Finally, Acheson thinks the White House and the Senate should consider the needs of each circuit as a whole. Indeed, when she was at the Department of Justice, Acheson spoke with chief judges about the needs of their circuits. During these conversations, she would learn that some circuits might need prosecutors or defense attorneys, whereas others lacked women, minorities, or former state judges. With the needs of a circuit in mind, she says, lawmakers should be prepared to put deals and packages of nominees together. Acheson admits, however, that this is wishful thinking, “highly academic,” and unlikely to work in real life because of the number of people pushing for their preferred candidates, rather than thinking of the needs of the circuits.
Having worked for the Judiciary Committee, O’Neill feels that lawmakers should rethink the strenuous vetting process that candidates undergo. Young Senate staffers are often the ones vetting the candidates and, O’Neill thinks, are often unseasoned and overly ideological. They have not yet learned that good people can make mistakes in life.
O’Neill worries that this supercritical process may be keeping great judges from the bench. Especially in the murky areas of drug use and sexual harassment, it would be a shame to lose a good candidate because of something he or she did “11 or 12 years ago,” says O’Neill, who clerked for Justice Thomas on the Supreme Court. Ultimately, O’Neill asks, are we getting better people today than we did in the 1920s and ’30s when the process wasn’t so stringent? “Maybe. Maybe not.”
“I’m a great believer in forgiveness. . . . I think all of us have done things that we probably regret in our lives. That’s just the nature of being a human being,” says O’Neill.
Burying the Hatchet
Unfortunately, the tit-for-tat battles in the divided government of the 1990s show little public sign of détente today. After the failed Pickering confirmation, the Bush administration held meetings with Republican senators and interest groups to prepare for the next set of nominees. “We are going to continue to nominate the same kind of people . . . [who are] well-qualified and in the mainstream,” the Washington Post quoted White House counsel Alberto Gonzales saying on April 15. Both parties keenly believe they occupy the political center and neither is in the mood to compromise.
By its nature, especially during a divided government, the confirmation process is a contentious one, and a Senate that both confirms and denies nominees is doing its job. The solution to filling judicial vacancies does not involve a compliant Senate. “I don’t think the system needs to be fixed to a point where there’s an automatic rubber stamp to any presidential nominee no matter who that person is,” says Marcia Greenberger.
In light of the vacancy crisis, though, the administration and the parties in the Senate must work together to appoint as many qualified judges as they can agree upon. Ultimately, the quality of justice for litigants in federal court will suffer if judges’ dockets are too full, regardless of which party appointed them.
“There’s enough blame to go around to cover everybody,” says Jan Baran. The judicial appointment process would improve if the parties would “just bury the hatchet and find some solutions to actually go forward and get qualified people on the bench so that our judiciary can function.”
Stephen Murdoch wrote about government infringement on civil liberties in the March issue.