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2002
A JUDICIARY DIMINISHED IS JUSTICE DENIED: THE CONSTITUTION, THE SENATE, AND THE VACANCY CRISIS IN THE FEDERAL JUDICIARY
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
OCTOBER 10, 2002
Serial No. 108
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman
HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
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JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
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SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MELISSA A. HART, Pennsylvania,
Vice Chair
LAMAR SMITH, Texas
J. RANDY FORBES, Virginia
JERROLD NADLER, New York
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
BRADLEY S. CLANTON, Chief Counsel
PAUL B. TAYLOR, Counsel
CRYSTAL M. ROBERTS, Counsel
KRISTEN SCHULTZ, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member
C O N T E N T S
OCTOBER 10, 2002
OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution
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The Honorable Robert C. Scott, a Representative in Congress From the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security
WITNESSES
Mr. John C. Eastman, Professor of Constitutional Law, Chapman University School of Law, and Director, The Claremont Institute Center for Constitutional Jurisprudence
Oral Testimony
Prepared Statement
Mr. Todd F. Gaziano, Senior Fellow In Legal Studies and Director, Center for Legal and Judicial Studies, The Heritage Foundation
Oral Testimony
Prepared Statement
Mr. Ralph Neas, President, People for the American Way and People for the American Way Foundation
Oral Testimony
Prepared Statement
Ms. Kay R. Daly, Communications Director and Spokesperson, Coalition for a Fair Judiciary
Oral Testimony
Prepared Statement
APPENDIX
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Material Submitted for the Hearing Record
March 21, 2002 Letter From Rep. Steve Chabot to Sen. Tom Daschle
Prepared Statement of Chief Judge Douglas H. Ginsburg of D.C. Circuit to the D.C. Circuit Judicial Conference on June 13, 2002
Grutter v. Bollinger Procedural Appendix to Judge Boggs' Dissent
The Washington Times Article, ''No Independence on Senate Judiciary Committee,'' by Nat Hentoff, September 16, 2002
The Washington Post Editorial, ''Judicial Nominations Scorecard,'' August 9, 2002
The National Law Journal, Volume 24, Number 46, ''A Partisan Blood Sport,'' by Todd Gaziano, August 5, 2002
''FindLaw Forum: Why We Must Confirm Judicial Nominees and Restore the Courts to Good Health,'' CNN.com, by Marci A. Hamilton, April 11, 2002
Letter From Chief Judge Boyce F. Martin, Jr., United States Court of Appeals for the Sixth Circuit, to Chairman F. James Sensenbrenner, Jr., August 22, 2002
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Letter From Chief Judge Carolyn Dineen King, United States Court of Appeals for the Fifth Circuit, to Oversight Counsel Kristen Schultz, October 7, 2002
Letter From Chief Judge Edward R. Becker, United States Court of Appeals for the Third Circuit, to Chairman Steve Chabot, October 8, 2002
Letter From Chief Judge Edward R. Becker, United States Court of Appeals for the Third Circuit, to Chairman F. James Sensenbrenner, Jr., October 14, 2002
Letter From Chief Judge J.L. Edmondson, United States Court of Appeals for the Eleventh Circuit, to Oversight Counsel Kristen Schultz, October 8, 2002
Letter From Chief Judge Douglas H. Ginsberg, United States Court of Appeals, District of Columbia Circuit, to Chairman Steve Chabot, October 16, 2002
Ashbrook Center for Public Affairs at Ashland University web site [www.ashbrook.org], ''Judge Shopping by . . . Judges?'' by John C. Eastman, editorial June 2002
Article From the Herald Democrat, ''Clark Still Focused on House Race,'' October 4, 2002, submitted by the Honorable Sheila Jackson Lee, a Representative in Congress From the State of Texas
Prepared Statement From the Alliance for Justice, submitted by the Honorable Jerrold Nadler, a Representative in Congress From the State of New York, and Ranking Member, Subcommittee on the Constitution
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Letter from Todd Gaziano, Senior Fellow In Legal Studies and Director, Center for Legal and Judicial Studies, The Heritage Foundation, to Chairman Steve Chabot with follow-up material
Prepared Statement From Judge Dennis Jacobs, Circuit Judge from the Second Circuit Court of Appeals and Chair of the Judicial Conference Committee on Judicial Resources
''The Judicial Vacancy Crisis: Quantity and Quality?'' by Thomas L. Jipping, J.D., Concerned Women for America
A JUDICIARY DIMINISHED IS JUSTICE DENIED: THE CONSTITUTION, THE SENATE, AND THE VACANCY CRISIS IN THE FEDERAL JUDICIARY
THURSDAY, OCTOBER 10, 2002
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 9:10 a.m., in Room 2141, Rayburn House Office Building, Hon. Steve Chabot [Chairman of the Subcommittee] presiding.
Mr. CHABOT. Committee will come to order. I am Steve Chabot, Chairman of the Subcommittee on the Constitution of the Judiciary Committee. We welcome everyone here this morning.
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This morning the Subcommittee on the Constitution convenes to explore the causes and effects of the current Federal judiciary vacancy crisis and the Senate's constitutional role in confirming Federal judges. During the first 2 years of the current Administration, the United States circuit courts of appeals have suffered under the highest vacancy rates in at least a decade. During 2001 and 2002, the vacancy rates in the circuit courts have been 17.9 percent and 15.6 percent respectively. Currently only 9 out of the 16 seats on the Sixth Circuit Court of Appeals, which happens to be the circuit that my community, Cincinnati, OH, is located within, have been filled, and the large vacancy rate on the Sixth Circuit has prompted the U.S. Administrative Office of Courts to declare a ''judicial emergency'' in that circuit.
Jeffrey Sutton and Deborah Cook have been nominated for seats on the sixth circuit for over a year, yet the Senate Judiciary Committee has failed to even schedule a hearing on their nominations, a situation that The Cincinnati Post, one of the hometown newspapers in my community, has editorialized as, ''an outrage.''
The vacancy crisis in the sixth circuit has resulted in serious allegations by a dissenting judge that the chief judge improperly influenced the outcome of a case by using nonrandom procedures to appoint himself to the panel in Grutter v. Bollinger, a case involving the use of race in admission to the University of Michigan law school. Following those allegations and an inquiry from this Committee, Chief Judge Martin has now been forced to institute more random assignment procedures and conduct an extensive review of the court's internal operating procedures. In response to this Committee's inquiry regarding the procedures in Grutter, Chief Judge Martin wrote, ''Operating within a circuit as ours, with 8 vacancies out of 16 positions, we, of course, have found great difficulty in completing enough panels.'' That difficulty, however, cannot justify resorting to nonrandom assignments that threaten public confidence and the impartiality of the judiciary.
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The current Senate's record on scheduling, holding hearings, and confirming judges is significantly worse than previous Senate's when measured by the only valid criteria on which to compare, namely confirmation rates, not raw numbers of confirmations. According to The Washington Post's August 9 editorial, ''The elder President Bush, in a period of divided Government similar to this, one saw 70 of his 74 nominations [95 percent] confirmed. And President Clinton got 126 of his 140 nominees acted upon [90 percent] a reminder that the Senate is capable of far swifter action than recent practice has permitted. By contrast, President Bush has seen only 59 percent of his 123 nominees confirmed. More disturbing, the pernicious practice of letting nominees hang indefinitely is not improving. Eleven of Mr. Bush's circuit court nominees have waited more than a year for a hearing; none of the past three Presidents saw any circuit court nominee suffer this indignity during his first 2 years in office.''
The Senate Judiciary Committee remains a partisan bottleneck that has kept many nominees from being reported to the full Senate for an up-or-down vote. While Senator Daschle has referred to a ''200-year-old precedent'' when describing the tradition of not scheduling votes by the full Senate out of deference to the Senate Judiciary Committee's failure to report names, no such 200-year-old tradition exists. And even if it did, it would appear to violate constitutional principles and the Founders' understanding of the Constitution as articulated in the Federalist Papers.
Article II, section 2 of the Constitution provides that the President, ''shall nominate and by and with the Advice and Consent of the Senate shall appoint judges of the Supreme Court and all other officers of the United States.''
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If there were any room for doubt regarding the role of the full Senate in confirming the President's judicial nominees, Alexander Hamilton in Federalist Paper No. 76 makes clear that the President is, ''bound to submit the propriety of his choice to the discussion and determination of a different and independent body and that body an entire branch of the Legislature,'' with the emphasis on the entire branch of the Legislature. Hamilton's statement clearly presumes that while the Senate has constitutional authority to establish its own rules, it cannot do so in a way that denies the full Senate, an entire branch of the Legislature, the opportunity to discuss and determine the confirmation of each of the President's nominees.
The Senate's failure to bring Presidential nominees before the full body of the Senate for a vote is of great concern to this Subcommittee because of the implications for the administration of justice in the Federal courts and the preservation of the constitutional order envisioned by the Founders. Accordingly in this hearing, we hope to explore the causes and effects of the current Federal judiciary crisis and the Senate's constitutional role in confirming Federal judges.
I look forward to hearing from our witnesses here this morning, and I will now defer to the Minority side should Mr. Scott wish to make an opening statement.
Mr. SCOTT. Mr. Chairman, I ask unanimous consent that a statement from the Ranking Member Mr. Nadler be inserted into the record.
Mr. CHABOT. Without objection.
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Mr. SCOTT. And meanwhile I look forward to the testimony of the witnesses, particularly you mentioned your circuit, Mr. Chairman, the hearings that have been held in the circuit represented by my colleague in Virginia and myself, and the numerous hearings that have been held for circuit court vacancies in that circuit over the last 10 years.
Mr. CHABOT. Thank you very much. I appreciate the comments.
Mr. Forbes, is there anything you would like to say?
Mr. FORBES. No.
Mr. CHABOT. At this time I will introduce the witness panel, and we have a very distinguished panel here this morning, so we do appreciate you coming.
Our first witness today will be Dr. John C. Eastman, an associate professor at Chapman University School of Law specializing in constitutional law, legal history, civil procedure and property. Mr. Eastman is also the director of the Center for Constitutional Jurisprudence, a public interest law firm affiliated with the Claremont Institute.
Prior to joining the Chapman faculty in 1999, Dr. Eastman served as a law clerk to Supreme Court Justice Clarence Thomas and Judge Michael Luttig of the fourth circuit. He practiced law with Kirkland & Ellis, representing major corporate clients in complex commercial, contract, and consumer litigation. Dr. Eastman has also represented numerous clients in important constitutional law matters and participated in amicus curiae before the Supreme Court of the United States and lower courts.
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He has appeared as an expert legal commentator on C-SPAN, FOX News and the O'Reilly factor, and has published numerous op eds in newspapers across the country.
Dr. Eastman holds a Ph.D. in government from the Claremont graduate school and a J.D. from the University of Chicago law school, and we welcome you here this morning.
Our second witness today will be Todd Gaziano, senior fellow in legal studies and director of the Center for Legal and Judicial Studies at the Heritage Foundation, where he focuses on legal and judicial reform.
Before joining the Heritage Foundation in 1997, Mr. Gaziano served as chief counsel to the House Committee on National Economic Growth, National Resources and Regulatory Affairs, where he worked on Governmentwide regulatory reform legislation for Chairman David McIntosh. Prior to that he served in the Office of Legal Counsel in the U.S. Justice Department, which provides advice on constitutional and legal issues to the President, the Attorney General and other Cabinet Secretaries. He also served as a judicial law clerk to the honorable Edith H. Jones, United States judge for the Fifth Circuit Court of Appeals.
Mr. Gaziano received his J.D. from the University of Chicago law school, where he was selected as a John M. Olin Fellow in law and economics. And we welcome you here this morning.
Our third witness will be Ralph Neas, president of People for the America Way and People for the American Way Foundation. Mr. Neas previously served as president of the Neas Group and executive director of the Leadership Conference on Civil Rights, LCCR. In 1987, he led the effort by LCCR and its members, including People for the American Way, to block the nomination of Robert Bork to the U.S. Supreme Court. Prior to that Mr. Neas worked as chief legislative assistant to U.S. Senators Edward W. Brooke and Dave Durenberger.
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Mr. Neas has appeared on the news shows of ABC, NBC, CBS, CNN and FOX and has been profiled in numerous print publications including The New York Times, Washington Post and The Wall Street Journal. He holds a J.D. also from the University of Chicago law school, and we welcome you here this morning.
Our final witness today will be Kay Daly, communications director and spokesperson for the Coalition for a Fair Judiciary. The coalition is comprised of more than 70 grassroots organizations dedicated to supporting qualified, capable Federal judicial nominees who are committed to fair and accurate interpretation of existing law. The coalition focuses on all Federal judicial nominees, including nominees to the Court of Appeals, U.S. District Courts and the Supreme Court.
Ms. Daly is nationally recognized as a communication strategist, speechwriter and media coach. She has worked for U.S. Senators Phil Gramm and Pete Wilson, U.S. Representative Fred Heineman and the North Carolina Republican Party in a variety of communications and policy positions. Ms. Daly also worked for the Texas Public Policy Foundation as chief of staff to former Reagan Justice Department official Tex Lazar, and as research director for Tom Joyner, one of North Carolina's top-rated talk show hosts.
Ms. Daly has completed graduate work in legislative affairs at George Washington University, and we welcome you here this morning.
As I said, we have a very distinguished panel, and we are looking forward to your testimony. We would ask if possible if you could confine your statements to approximately 5 minutes. We actually have a lighting system. When the yellow light comes on, that means you have 1 minute to wrap up. When the red light comes on, if you could wrap up your testimony, we would appreciate it, and then we will follow up with questions. And we will start with Dr. Eastman.
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STATEMENT OF JOHN EASTMAN, PROFESSOR OF CONSTITUTIONAL LAW, CHAPMAN UNIVERSITY SCHOOL OF LAW, AND DIRECTOR, THE CLAREMONT INSTITUTE CENTER FOR CONSTITUTIONAL JURISPRUDENCE
Mr. EASTMAN. I want to acknowledge first what an extraordinary hearing this is, a Subcommittee of the House of Representatives inquiring into a matter that is textually committed by the Constitution to the other body, the Senate of the United States. But, of course, the House of Representatives does have an important role in the overall appointments process. It can propose legislation to confer the power of appointment for lower court judges in the President alone under article II of the Constitution. Moreover, the judicial seats that have been vacant for this entire session of Congress have been not only authorized, but mandated by law, yet that law is clearly not being followed. It is as if Senator Leahy thinks he has been vested with line item veto power and has used his own red pen to singlehandedly strike out 15 percent of the Federal appellate court bench.
But this hearing is about much more than the vacancy created by the Senate's inaction. The unprecedented assertion of power by the Senate is threatening two of the most core principles of our constitutional system of Government. It is intruding upon the President's power to nominate judges, in violation of the separation of powers. And it is threatening the independence of the judiciary and, as a result, the very rule of law itself.
Now, my fellow panelist Ralph Neas is going to tell you that the Senate is just being diligent in its advice and consent role, but quite frankly, his view of that role is fundamentally mistaken. He claims in his prepared testimony that the Senate has a coequal role in nominating judges. That claim is simply not consistent with either the Constitution's text or the history of the advice and consent power.
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As I describe in greater detail in my prepared testimony, the Framers of the Constitution assigned to the President the sole power to nominate and the primary power in appointing judges. They did this because they wanted the accountability that came with placing the appointment power in a single individual. And they specifically refused to give the power of appointment to the Senate because they knew the tendency of public bodies to feel no personal responsibility and to give full play to intrigue and cabal.
Now, as with every aspect of the separation of powers, there are, of course, checks on that Presidential power, the requirement of advice and consent to the Senate for principal officers and is a default for inferior officers. But when we view this check, mere check in the Senate as a coequal share in the power of appointment itself, as Mr. Neas does, we grant to the Senate a power that does not—that the Constitution does not confer, opening the door to the very threat of cabal and partisanship that the Founders feared. What is worse, the ideological litmus test some Senators would impose with their new-found power is one that would turn a blind eye to the limits on power that the Constitution itself imposes on those very same Senators.
This threat to an independent judiciary and its ability to check a Congress bent on exercising power that is not authorized by the Constitution is every bit as great as the threat raised by the Court-packing scheme advanced by President Roosevelt in the 1930's and every bit as dangerous to the very idea of limited constitutional Government.
So what can this Committee do? As I alluded to at the beginning, it can consider legislation that would give sole appointment power to the President alone whenever the Senate has failed to act within a reasonable time in confirming or rejecting his nominees. That would ensure that the Senate's check on Presidential power does not itself become a blank check.
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I thank this Committee for the opportunity to help shed some light on this serious problem, and I hope that your hearing today will demonstrate to the country how critical is the constitutional crisis that has been perpetrated by the Senate's abject refusal to perform its advice and consent role for a significant number of the President's nominees to the Circuit Courts of Appeals.
Thank you, Mr. Chairman.
Mr. CHABOT. Thank you very much, Mr. Eastman.
[The prepared statement of Mr. Eastman follows:]
PREPARED STATEMENT OF DR. JOHN C. EASTMAN
Good morning, Chairman Sensenbrenner and other members of the House Judiciary Subcommittee on the Constitution. I am delighted to be here this morning to offer some historical and constitutional perspective on the current stalemate in the Senate Judiciary Committee over confirmations of circuit court judges, its impact on the federal judiciary and, perhaps more importantly, its threat to the separation of powers.
As of yesterday, seventeen months have passed since President Bush nominated his first group of circuit court judges, only three have been confirmed. Several have not even received a hearing, yet the number of vacancies on the federal bench has grown to crisis proportion. Chief Justice William Rehnquist recently complained of an ''alarming number of judicial vacancies,'' creating a real strain on the courts.(see footnote 1) Even Senator Patrick Leahy, who, as Chairman of the Senate's judiciary committee is largely responsible for the current logjam, previously referred to a judicial vacancy ''crisis'' when the number of vacancies on the bench was about half what it is today, contending that those who delay or prevent the filling of vacancies were ''derelict[ in their] duty,'' and delaying or preventing the administration of justice.(see footnote 2)
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More fundamentally, the judicial vacancy crisis is threatening to hamper the ability of the courts to perform their primary role as an important check on the elected branches of government, protecting individual rights against tyrannical majorities, and insuring that the legislative and executive branches do not exceed the scope of authority delegated to them by the Constitution. As James Madison noted two years before the Constitutional Convention, the ''Judiciary Department merits every care'' because it ''maintains private Right against all the corruptions of the two other departments. . . .''(see footnote 3)
Of course, Senator Leahy and his Democrat colleagues in the Senate claim that they are simply fulfilling their own constitutional obligation to give ''advice and consent'' to the President in the nomination process and to insure that those nominees who are ''hostile'' to their view of what the law ought to be are not confirmed to lifelong seats on the bench. The resulting standoff reveals important differences of opinion over the role of the Senate in the appointment process. But that disagreement in turn masks a profound division over the proper role of government in general, and even the very notion of the rule of law. As is often the case, it is well to begin with a review of the founders' understanding of the process in assessing this disagreement.
I. THE FRAMERS OF THE CONSTITUTION ASSIGNED TO THE PRESIDENT THE PRE-EMINENT ROLE IN APPOINTING JUDGES.
A. The President Alone Has The Power to Nominate
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Article II of the Constitution provides that the President ''shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court [and such inferior courts as the Congress may from time to time ordain and establish].''(see footnote 4) As the text of the provision makes explicitly clear, the power to choose nominees—to ''nominate''—is vested solely in the President,(see footnote 5) and the President also has the primary role to ''appoint,'' albeit with the advice and consent of the Senate. The text of the clause itself thus demonstrates that the role envisioned for the Senate was a much more limited one that is currently being claimed.
The lengthy debates over the clause in the Constitutional Convention support this reading. According to Madison's notes, an initial proposal on July 18, 1787, to place the appointment power in the Senate was opposed because, as Massachusetts delegate Nathaniel Ghorum noted, ''even that branch [was] too numerous, and too little personally responsible, to ensure a good choice.''(see footnote 6) Ghorum suggested instead that Judges be appointed by the President with the advice and consent of the Senate, as had long been the method successfully followed in his home state. James Wilson and Governeur Morris of Pennsylvania, two of the Convention's leading figures, agreed with Ghorum and moved that judges be appointed by the President.
In contrast, Luther Martin of Maryland and Roger Sherman of Connecticut argued in favor of the initial proposal, contending that the Senate should have the power because, ''[b]eing taken fro[m] all the States it [would] be best informed of the characters & most capable of making a fit choice.''(see footnote 7) And Virginia's George Mason argued that the President should not have the power to appoint judges because (among other reasons) the President ''would insensibly form local & personal attachments . . . that would deprive equal merit elsewhere, of an equal chance of promotion.''(see footnote 8)
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Ghorum replied to Mason's objection by noting that the Senators were at least equally likely to ''form their attachments.''(see footnote 9) Giving the power to the President would at least mean that he ''will be responsible in point of character at least'' for his choices, and would therefore ''be careful to look through all the States for proper characters.'' For him, the problem with placing the appointment power in the Senate was that ''Public bodies feel no personal responsibility, and give full play to intrigue & cabal,''(see footnote 10) while if the appointment power were given to the President alone, ''the Executive would certainly be more answerable for a good appointment, as the whole blame of a bad one would fall on him alone.''(see footnote 11)
Seeking a compromise, James Madison suggested that the power of appointment be given to the President with the Senate able to veto that choice by a 2/3 vote.(see footnote 12) Another compromise was suggested by Edmund Randolph, who ''thought the advantage of personal responsibility might be gained in the Senate by requiring the respective votes of the members to be entered on the Journal.''(see footnote 13) These compromises were defeated, however, and the vote on Ghorum's motion—that the President nominate and with the advice and consent of the Senate, should appoint—resulted in a 4–4 tie.(see footnote 14) The discussion was then postponed.
When the appointment power was taken up again on July 21, the delegates returned to their previous arguments. One side argued that the President should be solely responsible for the appointments, because he would be less likely to be swayed by ''partisanship''—what Madison's generation called ''faction''(see footnote 15)—than the Senate. The other side opposed vesting the appointment power in the President for a similar reason: he would not know as many qualified candidates as the Senate would, and might still be swayed by personal considerations or nepotism.
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The convention delegates were primarily concerned about improper influence in the appointments process, and most of the debate centered on whether assigning the appointment power to the President or to the Senate would serve as a better check on that influence. Those who, like Madison, argued that the President should have the sole power of appointment believed that this procedure would best prevent such political bargaining. As Edmund Randolph noted, ''[a]ppointments by the Legislatures have generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications.''(see footnote 16) But those who opposed this idea, and instead wanted the Senate to have the power of appointment, did not argue that the Senate should have the power in order to control the development of case law or regulate judicial philosophy. Instead, they feared that the President would be ''more susceptible to caresses & intrigues than the Senate,'' as Oliver Ellsworth of Connecticut contended.(see footnote 17)
In the end, the Convention agreed that the President would make the nominations, and the Senate would have a limited power to withhold confirmation as a check against political patronage or nepotism. Governeur Morris put the decision succinctly: ''as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.''(see footnote 18) As the Supreme Court subsequently recognized, ''the Framers anticipated that the President would be less vulnerable to interest-group pressure and personal favoritism than would a collective body.''(see footnote 19) No one argued that the Senate's participation in the process should include second-guessing the judicial philosophy of the President's nominees or attempting to mold that philosophy itself. Indeed, such a suggestion was routinely rejected as presenting a dangerous violation of the separation of powers, by allowing the Senate to control the President's choices and, ultimately, intrude upon the judiciary itself.
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Madison, for instance, arguing in defense of his suggested compromise—that a 2/3 vote of the Senate could disqualify a judicial nomination, but otherwise giving the President a free hand-noted that
The Executive Magistrate wd be considered as a national officer, acting for and equally sympathizing with every part of the U. States. If the 2d branch alone should have this power, the Judges might be appointed by a minority of the people, tho' by a majority, of the States, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the States. . . .(see footnote 20)
In short, by assigning the sole power to nominate (and the primary power to appoint) judges to the President, the Convention specifically rejected a more expansive Senate role; such would undermine the President's responsibility, and far from providing security against improper appointments, would actually lead to the very kind of cabal-like behavior that the Convention delegates feared.
This understanding of the appointment power was reaffirmed during the ratification debates. In Federalist 76, for example, Alexander Hamilton explained at length that ''one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.''(see footnote 21) Noting that a President would ''have fewer personal attachments to gratify, than a body of men who may each be supposed to have an equal number,''(see footnote 22)—or as we would say today, that the President will be swayed by fewer political pressure groups than the Senate—Hamilton concluded:
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In the act of nomination, [the President's] judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.(see footnote 23)
Note the very limited role that the Senate serves in Hamilton's view—which, of course, echoes the views expressed at the Constitutional Convention by both those who defended and those who opposed giving the appointment power to the President. In the founders' view, the Senate acts as a brake on the President's ability to fill offices with his own friends and family members rather than qualified nominations, but beyond that, the element of choice—the essence of the power to fill the office—belongs to the President alone. The Senate has the power to refuse nominees, but in the Constitutional scheme it has no proper authority in picking the nominees—either through direct choice or through logrolling and deal-making.
Hamilton was not so ignorant as to deny that deal-making would be the process by which things got done in the Senate—as he writes, legislatures are very often prone to ''bargain[s]'' by which one party says to another, '' 'Give us the man we wish for this office, and you shall have the one you wish for that.' ''(see footnote 24) But this legislative propensity was, for Hamilton, a primary reason for giving the appointment power to the President instead of the Senate. Placing the nomination power in the President alone would, he argued, cut down on the degree to which political bargains in the Senate influenced the choice of candidates, because under the Constitutional scheme, all would understand that the power of appointment belonged in the President alone. That understanding, as we shall see, has been eroded in recent years.
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Commenting on the prevailing understanding, Joseph Story later described the President's power to nominate as almost absolute. ''The president is to nominate,'' Story noted, ''and thereby has the sole power to select for office.''(see footnote 25) Story believed that the danger of vesting the appointment power in the Senate was greater than the danger of giving the power to the President alone, because ''if he should . . . surrender the public patronage into the hands of profligate men, or low adventurers, it [would] be impossible for him long to retain public favour. . . . At all events, he would be less likely to disregard [public disapprobation] than a large body of men, who would share the responsibility and encourage each other in the division of the patronage of the government.''(see footnote 26)
B. The Framers Envisioned A Narrow Role for The Senate in The Confirmation Process.
Of course, there is more to the appointment power than the power to nominate, and the Senate unquestionably has a role to play in the confirmation phase of the appointment process. But the role envisioned by the framers was as a check on improper appointments by the President, one that would not undermine the President's ultimate responsibility for the appointments he made. As James Iredell—later a Justice of the Supreme Court himself—noted during the North Carolina Ratification Convention, ''[a]s to offices, the Senate has no other influence but a restraint on improper appointments. . . . This, in effect, is but a restriction on the President.''(see footnote 27)
The degree to which the founders viewed the power of appointment as being vested solely in the President can be gauged by the fact that John Adams objected even to the Senate's limited confirmation role, contending that it ''lessens the responsibility of the president.'' To Adams, the President should be solely responsible for his choices, and should alone pay the price for choosing unfit nominees. Under the current system, Adams complained, ''Who can censure [the President] without censuring the senate . . .?''(see footnote 28) The appointment power is, Adams wrote, an ''executive matter[],'' which should be left entirely to ''the management of the executive.''(see footnote 29) James Wilson echoed this view: ''The person who nominates or makes appointments to offices, should be known. His own office, his own character, his own fortune, should be responsible. He should be alike unfettered and unsheltered by counsellors.''(see footnote 30)
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In discussing the analogous situation of executive appointments—such as ambassadors or cabinet members—James Madison asked, ''Why . . . was the senate joined with the president in appointing to office . . .? I answer, merely for the sake of advising, being supposed, from their nature, better acquainted with the characters of the candidates than an individual; yet even here, the president is held to the responsibility he nominates, and with their consent appoints; no person can be forced upon him as an assistant by any other branch of government.''(see footnote 31)
The Senate's confirmation power therefore acts only as a relatively minor check on the President's authority—it exists only to prevent the President from selecting a nominee who ''does not possess due qualifications for office.''(see footnote 32) Essentially, it exists to prevent the President from being swayed by nepotism or mere political opportunism.(see footnote 33) Assessing a candidate's ''qualifications for office'' did not give the Senate grounds for imposing an ideological litmus on the President's nominees, at least where the questioned ideology did not prevent a judge from fulfilling his oath of office.
C. Ideology Was Not Considered A Proper Reason for Refusing Confirmation, As Long As It Did Not Prevent The Nominee From Fulfilling The Judicial Oath.
In the founders' view, then, the Senate's power in the confirmation of judicial appointees was extremely limited. It existed solely to prevent the President from exercising his power in an improper manner. Ideology—at least ideology of the kind that is unrelated to a candidate's ability to fulfill his oath of office—simply had no place in the Senate's decision. As Hamilton wrote, ''It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose—they can only ratify or reject the choice he may have made.''(see footnote 34) It was not that the founders believed the political views of judges were irrelevant; they were not that naíve. But in their view, the President was alone responsible for his appointments, and, in turn, the ideology of those he appointed.(see footnote 35)
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There is, of course, an early case that suggests the Senate believed that it was appropriate to reject nominees because of their political ideology. In 1795, John Rutledge of South Carolina, former delegate to the Constitutional Convention, was nominated by President Washington to be Chief Justice of the United States. Although Rutledge took his seat and presided over two cases, he was never confirmed.
Rutledge was a vocal opponent of the controversial Jay Treaty, negotiated by President Washington's envoy to England—and first Chief Justice of the United States—John Jay.(see footnote 36) Shortly after his nomination, Rutledge delivered an emphatic and somewhat imprudent attack on the Treaty, which was supported by the Federalist majority in Congress. Rutledge's appointment was rejected shortly thereafter on December 15, 1795, almost immediately after Congress resumed its work after a recess.(see footnote 37) Although the Senate's refusal to confirm Rutledge might in part be due to questions about his mental stability,(see footnote 38) his opposition to the Jay Treaty undoubtedly played an important role in the vote. Thomas Jefferson complained privately that ''[t]he rejection of Mr. Rutledge by the Senate is a bold thing; because they cannot pretend any objection to him but his disapprobation of the treaty. It is, of course, a declaration that they will receive none but tories hereafter into any department of the government.''(see footnote 39)
Jefferson's supporters in Congress responded in kind after Jefferson was elected President. Attempting to expand Jefferson's own control over the courts beyond what was permitted in the normal course of filling vacancies, the Jeffersonian Republicans brought articles of impeachment against Supreme Court Justice Samuel Chase, a Federalist opponent of the administration.(see footnote 40) Jefferson's supporters in Congress had been successful in impeaching New Hampshire District Judge John Pickering for bad behavior—Pickering was insane(see footnote 41)—but success in impeaching him emboldened members of Jefferson's party to impeach Justice Chase, who had been appointed in 1796 by John Adams, and had attempted to enforce the notorious Sedition Act.(see footnote 42) Articles of impeachment against Chase were drawn up by Virginia Congressman John Randolph of Roanoke,(see footnote 43) who was immediately challenged on the floor of the House. ''[T]he streams of justice should be preserved pure and unsullied,'' said one Congressman:
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The Judicial department ought to attach to itself a degree of independence. I am of opinion that this House possesses no censorial power over the Judicial department generally, or over any judge in particular. They have alone the power of impeaching them; and when a judge shall be charged with flagrant misconduct . . . I shall be at all times prepared to carry the provisions of the Constitution into effect, in virtue of which great transgressors are punishable for their crimes. . . . If the resolution pass in its present form, it appears to me that we shall thereby pass a vote of censure on this judge, which neither the Constitution nor laws authorize.(see footnote 44)
Popular outcry against Chase's impeachment was swift. ''The simple truth is,'' one newspaper said, that ''Mr. Jefferson has been determined from the first to have a judiciary, as well as a legislature, that would second the views of the executive.''(see footnote 45) ''I am afraid,'' said another Congressman, ''that unless great care be taken the doctrine of judicial independence will be carried so far as to become dangerous to the liberties of the country.''(see footnote 46) Randolph insisted that he was not seeking impeachment for ideological reasons but based on Chase's bad behavior. In a charge to a grand jury in a Sedition Act case in Baltimore, Chase had let fly with a political screed against the Jefferson Administration, and supporters of impeachment argued that this demonstrated Judge Chase's own ideological bias.(see footnote 47) Yet few were persuaded. To the Federalists, the Chase impeachment was motivated purely by the political ideology of the Jeffersonians. As John Quincy Adams wrote in his diary, ''this was a party prosecution.''(see footnote 48)
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MAYER, SUPRA NOTE 40 AT 268–276, DISCUSSES JEFFERSON'S VIEW OF THE PROPER ROLE OF IDEOLOGY IN THE JUDICIARY—a view too complex to address fully here. In brief, ''Jefferson's constitutional theory . . . relied upon the independence of the judiciary as a guardian of individual rights against executive and legislative tyranny; [so] his quarrel with the judiciary was that under the control of the Federalists, it failed to fulfill this vital function and had become the destroyer rather than the protector of the Constitution and citizens' liberties.'' Id. at 268. As I argue infra, section II, today's attempt by Senate liberals to delve into the ideology of judicial nominees gets this Constitutional theory backwards: their quarrel with the judiciary is precisely that it threatens to place roadblocks in the way of the left's attempt to increase government control over citizens' lives. Where Jefferson believed the judiciary should not be independent ''of the will of the people,'' modern liberals want the judiciary dependent on the will of political interest groups. Witness the liberal reaction to the recall of California Chief Justice Rose Bird—an expression of ''the will of the people'' which the left denounced as a corruption of the rule of law by thoughtless mob rule. See Erwin Chemerinsky, Evaluating Judicial Candidates, 61 S. Cal. L. Rev. 1985 (Sept. 1988). Witness also the notion of a ''living Constitution,'' by which unelected judges exercise the power to nullify duly enacted laws based on their own unaccountable consciences.
The Senate ultimately voted not to convict Justice Chase, and the Congress backed away from the ideological litmus test that threatened the independence of the judiciary. As one commentator has noted, ''[a]t that early stage of the republic, a successful impeachment of a Supreme Court Justice innocent of criminal activity probably would have left the judicial branch of the federal government forever dependent on the legislative.''(see footnote 49) As a result, the use of impeachment to enforce political orthodoxy on the Supreme Court was abandoned. In 1970, when then-Congressman Gerald Ford denounced Justice William O. Douglas on the floor of the House and called for his impeachment, the suggestion was doomed from the start.(see footnote 50)
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MAPP, SUPRA NOTE 43 AT 89.
II. THE CURRENT STATE OF THE CONFIRMATION POWER.
A. Why Ideology Matters to The Left.
Despite the original understanding of the Senate's limited role in the confirmation process, and despite the lessons learned from these early historical flirtations with the use of political ideology as a criteria for judicial confirmation, the Senate today appears bent on using its limited confirmation power to impose ideological litmus tests on presidential nominees and even to force the President to nominate judges preferred by individual Senators, thus arrogating to itself the nomination as well as the confirmation power.
The Senate's expanded use of its confirmation power should perhaps come as no surprise. As a result of the growing role of the judiciary—and of government in general—in the lives of Americans today, the Senate's part in the nomination process has become a powerful political tool, and, like all powerful political tools, it is the subject of a strenuous competition among interest groups every time the President seeks to fill a judicial vacancy. Nevertheless, it is a tool that poses grave dangers to our constitutional system of government. In its current manifestation, the Senate's ideological use of the confirmation power threatens the separation of powers by undermining the responsibility for appointments given to the President, by demanding of judicial nominees a commitment to a role not appropriate to the courts, and, perhaps most importantly, by threatening the independence of the judiciary itself.
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The reason that some Senators are so intent on delving into the judicial philosophy of nominees is deeply connected to their view of the proper role of the judiciary in American government. Viewing the Constitution as a ''living document,'' modern-day liberals see the Court as a place where the Constitution is stretched, shaped, cut, and rewritten in order to put in place so-called ''progressive'' policies that could never emerge from the legislative process. Of course, the Constitution is based on a profoundly different notion of law than is modern liberalism, and it is no wonder, therefore, that President Franklin D. Roosevelt, the godfather of the Welfare State that lies at the center of modern liberalism, found it necessary to resort to the highly questionable ''Court-packing plan'' of 1936 in order to enforce his ''vision'' of a new political order. The Constitution simply was not designed to accommodate such things as the massive redistributions of wealth or bureaucratic restrictions on individual liberty that Roosevelt was proposing—in fact, it was designed precisely to prevent such things.(see footnote 51) As Rexford Tugwell, one of the principal architects of the New Deal, admitted, ''To the extent that [the New Deal policies] developed, they were tortured interpretations of a document intended to prevent them.''(see footnote 52) So the Constitution was essentially re-written by interpretation, culminating in the great ''Switch in Time That Saved Nine,'' in which a century and a half of precedent was reversed and the Constitution stretched and torn out of shape to accommodate the New Deal programs.(see footnote 53)
Judicial ideology is therefore critically important to modern-day liberals because any honest reading of the Constitution reveals that it is incompatible with their scheme of government.
Senator Schumer, for example, has been quite candid in acknowledging that his opposition to President Bush's judicial nominees is based on the fact that they respect and will enforce the Constitution's limitations on the power of Congress. ''Elected officials,'' Senator Schumer told the press on May 9, 2002,
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should get the benefit of the doubt with respect to policy judgments and courts should not reach out to impose their will over that of elected legislatures. . . . Many of us on our side of the aisle are acutely concerned with the new limits that are now developing on our power to address the problems of those who elect us to serve—these decisions affect, in a fundamental way, our ability to address major national issues like discrimination against the disabled and the aged, protecting the environment, and combating gun violence.(see footnote 54)
This is not to say that ideology should never play a role in the confirmation process. Some ideologically-based views render it impossible for a nominee who holds them to fulfill his oath of office. Consider, for instance, Judge Harry Pregerson, who, when he was nominated to the Court of Appeals for the Ninth Circuit by President Carter, was asked whether he would follow his conscience or the law, if the two came into conflict. ''I would follow my conscience,'' he replied.(see footnote 55) That statement, grounded in Pregerson's own ideology, should easily have been grounds for disqualification, yet Pregerson was not only confirmed to the bench, but roundly praised for this statement, despite the fact that it threatens to undermine the very essence of constitutionalism and the rule of law.(see footnote 56)
Contrast this with Justice Antonin Scalia, who in a recent speech said that he was glad the Pope had not declared the Catholic Church's opposition to the death penalty a matter of infallible Church doctrine, because if the Pope had done so, Justice Scalia would, as a practicing and committed Catholic, feel compelled to resign, unable to abide by his oath to enforce the law. In his view,
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the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. . . . This dilemma, of course, need not be confronted by a proponent of the ''living Constitution,'' who believes that it means what it ought to mean. If the death penalty is (in his view) immoral, then it is (hey, presto!) automatically unconstitutional, and he can continue to sit while nullifying a sanction that has been imposed, with no suggestion of its unconstitutionality, since the beginning of the Republic. (You can see why the ''living Constitution'' has such attraction for us judges.)(see footnote 57)
Ideology understood in this light is of course relevant in selecting a judicial nominee. Broadly understood, such ''ideology'' would encompass a nominee's honor and character, which are necessary to fulfill the oath of office.(see footnote 58) A nominee who for ideological reasons cannot ''support and defend the Constitution of the United States''—say, an agent working for the Taliban—would be unfit for office because he would lack the qualifications necessary for the position. In fact, although we tend to take the concept of an oath lightly today, James Madison wrote that under the Constitution, ''the concurrence of the Senate chosen by the State Legislatures, in appointing the Judges, and the oaths and official tenures of these, with the surveillance of public Opinion, [would be] relied on as guarantying their impartiality. . . .''(see footnote 59) This is very different than demanding of a nominee that he toe the line of leftist jurisprudence.
Today, Senators inquire into a nominee's ideology for precisely the opposite reason: to ensure that the nominee will not abide by the Constitution or his oath to support it—to ensure, rather, that he will stretch and bend the Constitution in the directions that the Senator prefers.
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On top of the danger that this presents to the fair resolution of controversies in Constitutional law, it presents a great danger to another vital principle of American government: separation of powers. In Federalist 78, Alexander Hamilton declared the judiciary the ''least dangerous branch'' of the new federal government. ''[T]he general liberty of the people can never be endangered'' by the judiciary, he wrote, ''so long as the judiciary remains truly distinct from both the legislature and the Executive. . . . [L]iberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments.'' ''[A]ll the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation.''(see footnote 60) The enforcement of political orthodoxy on the bench is creating precisely this dependence, strengthened even more by demands for judicial ''deference'' to Congressional acts that exceed the limited scope of the federal government's Constitutional powers.
''The complete independence of the courts of justice is peculiarly essential in a limited Constitution,'' wrote Hamilton. The courts alone could ''declare all acts contrary to the manifest tenor of the Constitution void.''(see footnote 61) But the current attempt to block judges who believe in limited government is not motivated by a desire to maintain inviolate the ''exceptions to the legislative authority.'' It is motivated by a desire to ensure that the judiciary will interpret the Constitution in a way most suited to extend that legislative authority as far as possible.
What that essentially means is that the current attempt to use the Senate's confirmation power to regulate the ideology of judges is part of an overall trend which is turning the judiciary into a second legislative branch. The fundamental differences between the legislative and the judicial branch is that in the former, parties lobby, contend, vote, and decide on procedures that may infringe on the private rights of individuals. The courts are supposed to act as a ''countermajoritarian'' mechanism to ensure that the legislature does not engage in ''the invasion of private rights . . . from acts in which the Government is the mere instrument of the major number of the constituents.''(see footnote 62) The very existence of the judiciary is premised on the fact that the majority is not always right. Allowing the Senate—elected by the majority—too great a hand in regulating the federal bench risks eroding the judiciary's power to perform this most crucial task.
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B. The Dangerous Techniques of Today's Judicial Confirmation Process.
One of the most disturbing manifestations of the new process is the growing tendency of the Senate to refuse even to hold hearings for nominees. This practice suggests not that the nominees are too far outside the ideological mainstream to be confirmed, but rather that the Senators fear to vote down the nominees on ideological grounds, precisely because they are not outside the ideological mainstream.
Even those who argue that the Senate should take a large role in molding the judiciary must acknowledge that blocking nominations by refusing to hold hearings is an inappropriate tactic. The Senate has the power to advise and consent to a President's nominees. The refusal to hold hearings at all is not advise or consent; it is political blackmail which perpetuates the critical number of vacancies on the federal bench. In fact, as one author has noted, senatorial inaction is contrary to a resolution passed by the very first Senate in 1789, which declared that ''when nominations shall be made in writing by the President of the United States to the Senate, a future day shall be assigned, unless the Senate unanimously direct otherwise, for taking them into consideration . . . and the Senators shall signify their assent or dissent by answering, viva voce, ay or no.''(see footnote 63)
REV. 1739, 1755 (NOV. 1999).
Moreover, the current strategy of delay that appears to be the mainstay of the present Senate Judiciary Committee threatens to intrude upon the Executive's powers, in violation of core separation of powers principles. Improper attempts to impose ideological litmus tests by voting down the President's nominees could be countered by re-nomination of like-minded individuals, but the outright refusal even to hold hearings, or to refer nominees to the floor of the Senate for a vote, deprives the President of even this remedial power, eventually forcing the President to accede to demands to nominate individuals more to the liking of individual Senators. The delay tactics appear designed, then, to transfer the nomination power from the President to the Senate, a result that the founders greatly feared.(see footnote 64)
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It is very important to note an interesting claim made by some Senate Democrats in defense of their refusal to hold hearings on President Bush's nominees. Many of them—for instance, Senator Leahy—argue that they have actually confirmed quite a lot of judges, and that Republicans are simply lying when they complain about the slow pace of Senator Leahy's Judiciary Committee.(see footnote 65) But, in fact, most of the judges that have been confirmed are district court judges, a very important component of the judicial system, to be sure, but not the final word on the law, the way Circuit Judges are in the vast majority of cases. Of the eleven circuit court nominees President Bush made on May 9, 2001—seventeen months ago and counting as of yesterday—only six have received hearings. Two of these, Judges Barrington Parker Jr. and Roger Gregory, were confirmed relatively quickly(see footnote 66) because they were Clinton nominees, whom President Bush re-nominated in a show of bipartisanship. The others, Judge Charles Pickering, Justice Priscilla Owen, Professor Michael McConnell, and former deputy Solicitor General Miguel Estrada, waited over a year for their hearings, and then were given hearings only after far-left interest groups thought they had dug up enough dirt to scuttle the nominations. The Senate Judiciary Committee refused, by straight party-line vote, to report Judge Pickering and Justice Owen out of committee, and it appears poised to do the same with Michael McConnell and Migual Estrada, both of whom have received unanimous well-qualified ratings from the American Bar Association. The remaining five have not even received a hearing, 519 days and counting since their nominations were first announced: John Roberts, one of the leading Supreme Court practitioners of the day, nominated to the D.C. Circuit for the second time, his nomination by the elder Bush having likewise been stalled until it died with the expiration of the Congressional session following President Bush's defeat to Bill Clinton; Terrence Boyle, nominated to the Fourth Circuit for the second time, his nomination by the elder Bush also having been stalled until it died after the 1992 election; Dennis Shedd, also nominated to the Fourth Circuit; and Deborah Cook and Jeffrey Sutton, both nominated to the Sixth Circuit.
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Even taking Democrats at their word that their refusal to confirm President Bush's nominees is an exercise of legitimate Congressional power to protect us from diabolical judges, one cannot justify the refusal to hold hearings or have confirmation votes by the full Senate. If these judges are so dangerous, Congress should hold the hearings and vote them down. But the fact is that these nominees are in general not just of unobjectionable character but of impeccable character, with outstanding legal minds. Democrats refuse to hold hearings precisely because, if they did so, it would become clear that the Democrats have no legitimate objections to them and that, in fact, they enjoy majority support in the Senate, including support by some Democrats. The delays are meant as a starvation campaign—or, worse, to bide time for radical interest groups to discover (or invent) grounds for objecting to the nominees.
This tactic, too, has been previously addressed by the Senate. After Andrew Jackson defeated John Quincy Adams for President in 1828, Adams had several months as a lame duck President in which to nominate Judges to the federal bench. Because he no longer had the confidence of the people, several Senators wanted to postpone consideration of John J. Crittendon, whom President Adams had nominated as an Associate Justice of the Supreme Court. Although the Senate ultimately rejected the Crittendon nomination, the arguments made against the delay were profoundly important and ultimately carried the day throughout most of this nation's history. Senator Holmes argued, for example, that although the Senate had a right to deliberate and look into the character and qualifications of a candidate, it had ''no constitutional power to resist its execution.'' Delays beyond what were necessary to deliberate about the nominee's qualifications were, he asserted, ''an abuse of a discretion'' given by the Constitution.(see footnote 67) Senator Johnson echoed the sentiment, stating that ''The duty of the Senate is confined to an inquiry into the character and qualifications of the person, and to a decisive action upon the nomination, in a reasonable time.''(see footnote 68) Johnson made the following dire prediction: ''The moment you depart from the constitution, and begin an attack upon the other departments of the Government, you commence a conflict of authority where there is no arbiter, which will end in perpetual collision, or in the destruction of the Government.''(see footnote 69) That, and the similar prediction by Senator Chambers—''Once let discretion be adopted as the rule of conduct for those in power, and no man can prescribe limits to the mischief which must ensue''(see footnote 70)—should give us all pause at the actions, or rather inaction, currently being undertaken in the Senate.
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Another dangerous change that has occurred in the confirmation procedures involves an expansion of the so-called ''blue slip'' policy—the practice whereby home state Senators are essentially given a veto power of the President's nominees to positions in that state.(see footnote 71) Although the policy has always been constitutionally suspect(see footnote 72)—the advice and consent power is given to the Senate as a body, not to individual Senators—as historically exercised it at least had some grounding in the original purpose that underlay the advice and consent clause. Home state Senators were extended this courtesy because it was assumed that they would have first-hand knowledge of nominees from their home state that would allow them to more adequately judge their character and fitness for office—just the kind of role envisioned by the framers of the clause.(see footnote 73) More importantly, the blue slip practice, again as historically exercised, had natural limits protecting against its abuse. A Senator who went to the blue slip well too often could easily find that the President simply nominated a judge from another State in the Circuit.
Neither the original purpose nor the inherent limit is found in the current, expanded blue slip policy. Now, Senators essentially have a veto power over any nominee from the entire circuit in which their state is located, belying any claim to special knowledge of the nominee's character derived from home-state familiarity, and removing the one check on the policy's potential for abuse. Not surprisingly, without the check that was built in to the original policy, the blue slip has become a much more favored tool for advancing a Senator's own views, further undermining the President's constitutional role in appointments.
Ironically, senatorial inaction toward judicial nominations came under increasing fire during the Clinton Administration, when Democrats complained that the Republican-controlled Senate was refusing to confirm President Clinton's nominees.(see footnote 74) Now that the tables have turned, however, Democrats are defending their inaction not only as a political game of turnabout-is-fair-play, but as a solemn duty to defend the Constitutional structure-the same structure, of course, that they have been vigorously undermining for at least seventy years.(see footnote 75) Of course, the turn-about, tit-for-tat argument depends entirely on the starting point, and one need only query John Roberts and Terrence Boyle, both nominated originally in the first Bush administration, to rebut any claim that the ''inaction'' that has been attributed to the Republicans during the second term of the Clinton administration was the first shot in this confirmation war. In any event, one of the three main examples of Republican ''inaction,'' Roger Gregory, was re-nominated to the Fourth Circuit by President Bush, promptly confirmed, and is now sitting on the bench. Confirmation of another, Merrick Garland, was delayed for a year by Senator Charles Grassley in response to the Democrat's stall of John Roberts,(see footnote 76) but he was ultimately confirmed and now sits on the D.C. Circuit Court of Appeals. The final example, Helen White of Michigan, languished for several years, but Judge White was the sister-in-law of then-Senator Carl Levin. The blue-slip opposition by Michigan's other Senator to the blatant display of nepotism was precisely the kind of check on the appointment power envisioned by the framers; that opposition hardly serves as precedent for the broad-based delay and opposition to the highly qualified nominees currently before the Senate.
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But inaction and the blue slip process are not the only tactics being indulged toward President Bush's nominees. Recently, Judge D. Brooks Smith received a remarkable letter from Senator Charles Schumer of New York, asking Smith
to imagine it is 1965 and you are a Supreme Court justice. The Griswold opinion(see footnote 77) has not yet been written. Chief Justice Warren turns to you in conference and asks you for your opinion on whether there is a right to privacy in the Constitution and why. He further asks you to articulate how that right, if it exists, should be applied in Griswold. Please provide your answers to those inquiries.
Schumer was, in his own words, ''interested in how you personally read and interpret the Constitution.''(see footnote 78)
Senator Schumer's questions quite obviously have nothing to do with preventing nepotism, or the appointment of incompetent political cronies, by the President. Instead, Senator Schumer's questions serve merely to test Judge Smith's commitment to the standard of ''evolving constitutionalism'' advocated by Schumer and some of his colleagues. Senator Schumer's question is designed precisely to elicit the nominee's political ideology in an attempt to enforce political orthodoxy on the bench. Yet Schumer is not ''responsible'' for the nomination in the sense that the founders envisioned. Citizens throughout most of the country who might be appalled by Senator Schumer's questions cannot vote Senator Schumer out of office. While President Bush, in nominating Judge Brooks, must be, in Madison's words, ''considered as a national officer, acting for and equally sympathizing with every part of the U. States,'' Senator Schumer is only required to serve his liberal constituency in New York, comprised of groups such as the National Organization for Women, which targeted Judge Smith's nomination, claiming that he is ''unfit'' to be a Circuit Judge because he did not resign fast enough from a men's hunting club, and because, in its words, he has ''ultraconservative buddies.''(see footnote 79)
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A similar dynamic was at play in the Senate Judiciary Committee's rejection of Texas Supreme Court Justice Priscilla Owen to a seat on the U.S. Court of Appeals for the Fifth Circuit. The main source of opposition to Justice Owen was her vote to uphold a Texas statute requiring that minor girls notify their parents before obtaining an abortion. The Texas statute contained a judicial bypass mechanism, as required by existing Supreme Court precedent. In fact, there was little doubt that the statute was constitutional under prevailing precedent. The opposition to Justice Owen, then, was based on her refusal to ignore existing, binding Supreme Court precedent in favor of the expanded, unfettered right to abortion being propounded by the litigants in the case. What the opponents of Justice Owen wanted instead, apparently, was a judge who would ignore the law and existing Supreme Court precedent to advance her particular causes from the bench-like the Ninth Circuit judges whose recent attempt to strike down a Montana statute that, in full accord with prevailing Supreme Court precedent, required abortions to be performed by a physician, met with a rare, summary reversal by the Supreme Court without oral argument.(see footnote 80)
In short, the opposition to Justice Owen, like Senator Schumer's opposition to Judge Smith, was ultimately grounded in the fear that they would honor their oaths and uphold the law rather than bend the law to their own will (or, more precisely, to the will of those who would vote to confirm them). That such is an abuse of the advice and consent process should be obvious, as should the intrusion upon both other branches of government—the President's power to nominate and the very independence of the judiciary in upholding the rule of law.
Of course, Congress has some constitutional power to create schemes for the advancement of such causes or other pet projects, such as the redistribution of wealth or restriction on private liberties and property rights—that is to say, it can propose constitutional amendments that would authorize such action. It could propose to repeal the constitutional protections for property rights found in the Fifth Amendment and elsewhere, by writing an amendment and submitting it to the states. But Congress knows that such an amendment would never succeed, so instead some members of Congress pursue this new method of enforcing their radical agenda from the bench.
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This is essentially the difference between raw, abusive power and constitutional norms. Having failed to accomplish their policy goals in the constitutional fashion, some members of the Senate are attempting to accomplish them by submitting judicial nominees to a vetting by radical interest groups who will decide whether the nominees can be relied upon to decide the ''right'' way on the cases that come before them. There is an interesting irony to this, however: in a sense, the Constitution already requires judges to decide the ''right way''—that is, it requires judges to abide by an oath to ''support and defend the Constitution.'' But it also requires Senators to do the same thing. Some Senators have arguably abandoned that duty by supporting and defending a governmental scheme totally alien to that contemplated by the framers. Now those Senators are seeking to weed out any judges who might force them to abide by that duty.
III. CONCLUSION
In June of 2001, President Clinton's White House Counsel, Lloyd Cutler, told the Senate Judiciary Committee that ''it would be a tragic development if ideology became an increasingly important consideration in the future. To make ideology an issue in the confirmation process is to suggest that the legal process is and should be a political one. That is not only wrong as a matter of political science; it also serves to weaken public confidence in the courts.''(see footnote 81)
Today the Senate is doing precisely what one delegate to the North Carolina ratification convention warned against: it is taking over the nomination power which the Constitution vested in the President alone. ''[T]he President may nominate, but they have a negative upon his nomination, till he has exhausted the number of those he wishes to be appointed: He will be obliged finally to acquiesce in the appointment of those which the Senate shall nominate, or else no appointment will take place.''(see footnote 82) The dangers posed by such a system are as real today as they were to the founding generation. It is time to rid ourselves of all ideological litmus tests save one: ''Mr. or Ms. Nominee, are you prepared to honor your oath to support the Constitution as written and not as you would like it to be, if we confirm you to this important office?'' Any nominee who answers that question in the negative deserves to be rejected. Unfortunately, the Senate is today refusing a hearing or denying a vote to several nominees precisely because the current leadership knows that those nominees would honestly answer that question in the affirmative.
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Mr. CHABOT. Mr. Gaziano.
STATEMENT OF TODD GAZIANO, SENIOR FELLOW IN LEGAL STUDIES AND DIRECTOR, CENTER FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE FOUNDATION
Mr. GAZIANO. Good morning, Mr. Chairman and Members of the Subcommittee. I also thank you for this opportunity to testify.
I concur in Professor Eastman's recommendation in some of the ways that the Framers clearly allow. This is set forth in my testimony as well. But I want to focus just briefly on the obvious cause of the judicial vacancy crisis, which is the Senate's intentional refusal to act on many of the President's nominees, and then talk about the effect on the courts.
There are a lot of statistics, of course, thrown around in this debate, but let me just mention two that make the delay unavoidable. At the end of the last Congress, there were 67 judicial vacancies, and this is a time at the end of a Presidential term when normally vacancies increase. At the end of this Congress today, there are 77, an increase of 15 percent, during a period when traditionally the new President's judicial nominees are given great deference. And I should add President Bush set records in the number and timing of his nominations before the Senate.
The second fact is the average wait for court of appeals nominees, because even the statistic I alluded to before gives the Senate more credit than it deserves if you look at the court of appeals nominees alone. My testimony compares the average wait of a court of appeals nominee for final Senate action for different Presidents, and it shows a very dramatic difference. Reagan, on the first set of nominees, first 11, was 35 days. It is 400 days now. But even that overestimates the speed of the Senate Judiciary Committee, because the first two nominees that they confirmed were President—appointed originally by President Clinton and were renominated as a goodwill gesture. If you eliminate those nominees, the average wait for the first 11 court of appeals nominees other than those two is 500 days.
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Well, what is the proper standard? In 1998, Senator Leahy proposed one. He proposed a law that would have required the Senate to act on all judicial nominees then pending for 60 days or longer before the Senate recessed for 10 days or longer. Now, according to his own standard that he tried to get enacted into law, on August 2001 recess he had 10 court of appeals nominees that were pending as that recess approached. He could have at least gotten them out of his Committee that he is solely responsible for, and his fellow Members of the Committee. After he confirmed the two Clinton judges, he acted on none of them. A year later—365 days later—2002 August recess, of the 10 that were pending earlier, he had had hearings on 3, Committee votes on 2, none of which were reported to the full Senate, and the third that he had the hearing on, and we all know the shameful denial of the Committee vote that occurred earlier this week.
In my remaining time I want to focus on the impact of the courts because my written testimony talks about, I think, the harm to the rule of law that the Committee is doing when it does conduct a hearing. But the fact is when the vacancy rates increase substantially, as the Chairman explained in his opening statement, the Judicial Conference of the United States has to declare judicial emergencies. This allows certain emergency rules to come into play. These aren't attractive rules, but the courts really have no choice.
For example, it allows a circuit court to sit with only one active judge on a panel and up to two retired judges or visiting judges. It was one such panel in the ninth circuit that decided the infamous Pledge of Allegiance case. It is this type of procedure that skews the jurisprudence of the appellate courts. There are other emergency rules, like two judges can rule on emergency motions or decide summary dispositions.
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The Federal judges that have written on this don't like this, and the academics have criticized it, but what is the alternative? It is either to deny justice by delaying these decisions further—one of the studies I cited in my written testimony describes the likely result of even in circuits where there isn't a judicial emergency rule, they decide more cases on their summary document. That is without oral argument, generally without an opinion. In that study Judge Jones, who I had the great privilege to work for, estimated that she spent less than 1 hour on each of the appeals for up to about half of her cases.
But what are the courts of appeals judges to do? But that is the best-case scenario for the situation in the courts. The worst-case scenario is there appears to be some great concern about judicial manipulation. Besides the matter that the Chairman alluded to, there have been questions raised about the chief judges' ability to assign other cases in other circuits, to select the senior judges or retired judges and other visiting judges who might sit on particular matters.
But the sixth circuit case really is the most dramatic case because this was a nationally watched case challenging the racially discriminatory policies of the University of Michigan. Every other circuit in the Nation had struck down such policies that had decided them, and the facts set forth in Judge Boggs' dissent are quite remarkable. After manipulating the original panel that was hearing motions in the case, the chief judge also refused to circulate—didn't—whether he refused to do so or not is left for others to judge—he didn't circulate the petition for hearing by the entire court until after two judges appointed by Republicans had retired. Then the court accepted the case en banc. Then the court heard argument. Months later the court rendered a very split decision, 5–4, in conflict with every other circuit, during which time the U.S. Senate refused to have any hearings in the circuit, as the Chairman has said, with the highest vacancy rate.
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Last week, Mr. Chairman, the students challenging the discriminatory policy brought an extraordinary writ in the U.S. Supreme Court asking the Supreme Court to take the remaining case away from the sixth circuit and decide both cases. I hope the Supreme Court does so because that is the only thing that is going to lift the cloud of that litigation. But it was the U.S. Senate that made that cloud possible. Either they intended it, or they just enabled it to happen through their intentional inaction. Neither possibility is very attractive. Thank you.
Mr. CHABOT. Thank you.
[The prepared statement of Mr. Gaziano follows:]
PREPARED STATEMENT OF TODD F. GAZIANO
Good morning Chairman Chabot and Members of the Subcommittee. Thank you for the opportunity to testify. The topic of today's hearing is certainly worthy of this Committee's attention. That you took the time to conduct this hearing so soon before you must recess for the election is further proof that the subject matter is important.
For the record, I am a Senior Fellow in Legal Studies and Director of the Center for Legal and Judicial Studies at The Heritage Foundation, a nonpartisan research and educational organization. I am a graduate of the University of Chicago Law School and a former law clerk to Judge Edith H. Jones on the U.S. Fifth Circuit Court of Appeals. From 1995–97, I was the Chief Counsel of a subcommittee of the House Government Reform Committee, and much earlier than that, I was a professional staff member for U.S. Senator Jennings Randolph (D-WV). In addition, I have also served in the U.S. Department of Justice, Office of Legal Counsel (OLC), during separate periods in the Reagan, Bush, and Clinton Administrations. Among its duties during the period when I worked there, OLC helped vet potential judicial nominees for the President and served as informal counsel to Supreme Court nominees during their confirmation hearings. Thus, I have a past professional link to and a great interest in all three branches of the federal government, including both Houses of Congress.
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I concur in the statement contained in the hearing title, ''A Judiciary Diminished is Justice Denied: the Constitution, the Senate, and the Vacancy Crisis in the Federal Judiciary.'' Nevertheless, the situation in the federal courts is uneven. There is not yet a crisis across-the-board, even though judicial emergencies have been declared for many courts. On close examination, the consequences of the high vacancy rate are partially ameliorated by the hard work of the judicial branch itself. That said, many federal appellate circuits have had such sustained high vacancy rates that it is straining the justice system mightily and has contributed to at least the perception of judicial manipulation in some very important cases.
The obvious cause of the vacancy crisis is the U.S. Senate's conscious refusal to act in a timely manner on many of the President's judicial nominations. The near complete breakdown in the judicial confirmation process as it relates to United States court of appeals nominees is worthy of special attention and concern. It is simply not possible to justify the stonewalling and other improper committee action on the grounds of payback or any other excuse. In 1997, when the vacancy rate on the appellate courts was less than half of what it is now, the current Chairman of the Senate Judiciary Committee, Patrick Leahy, said the situation was a ''crisis'' that interfered with the administration of justice. The current state is nothing less than a dramatic failure of the Senate's constitutional duty to provide its advice and consent to presidential appointments. It is also a violation of the Senate's obligation of comity to the executive and judicial branches of government, which is a vital aspect of the separation of powers.
The result is not just limited to shame on the Senate, however. The Senate's actions have begun to impair the judicial branch's ability to perform its constitutional functions. That impairment is limited at this point, but the impairment grows steadily as the period of sustained judicial vacancies is extended. The House Constitution Subcommittee is right to explore the implications of the Senate's failure.
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THE CONSTITUTIONAL FRAMEWORK OF ANALYSIS
As this Subcommittee knows, the United States Constitution provides that the President ''shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other [Principal] Officers of the United States, whose Appointments are not herein otherwise provided for.'' Art. II, §2, cl. 2. That clause further provides that ''Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.'' All federal judges below the Supreme Court are inferior in the judicial sense.
Lower court judges might also be ''inferior Officers'' for Appointments Clause purposes for whom Congress could vest the appointment in either the President or the Supreme Court alone. But Congress (or the Senate) has chosen to retain its power to pass on all judicial nominations. That is its prerogative. Yet, that choice underscores the Senate's duty, which extends to the other two branches of government and to the citizens who rely on the justice system, to provide its advice and consent in good faith and in a timely manner.
Scholars of the founding period have examined the historical record to illuminate some issues that I will only briefly address here. For example, there is evidence that the framers of the Constitution expected every presidential nominee to be voted on by the entire Senate and feared the arbitrary exercise of appointment power by a small committee. See Federalist Nos. 76–77. That seems clear, but I am unsure whether the text of the Appointments Clause, which confers the advice and consent role to the entire Senate, requires the Senate to act on every nomination. Those I respect have opined that the Constitution does not permit a committee of the Senate to block a nomination, but I am still dubious of that proposition. The Rules Clause that allows the Senate to make its own rules of procedure (Art. 1, §5, cl. 2) may permit the entire Senate to delegate its agenda-setting function to a committee.
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Others have interpreted the Senate Rules to require a full-Senate vote on presidential nominations regardless of what the relevant committee recommends. In my view, Senate Rule XXXI is ambiguous. It requires referral of all presidential nominations to ''appropriate committees,'' and it further states that ''the final question on every nomination shall be, 'Will the Senate advise and consent to this nomination?' '' Does that simply specify what the final question shall be on ''every nomination'' that is referred back to the full Senate or does it imply that the final question must be asked for ''every nomination?'' The Senate parliamentarians have given it the first construction.
I have not studied in depth either the constitutional question or the related question regarding the Senate rules in part because there is ultimately no remedy—apart from shame—for the violation of such a requirement. Assuming a disappointed nominee with standing filed a suit to force a full-Senate vote on his nomination, the courts would almost surely rule that the case presented a ''political question'' and decline to rule on the matter under its ''political questions'' doctrine. As for the tactic of urging shame, many other aspects of the confirmation process should have generated more shame. But it is still appropriate for citizens to add their voice to the chorus.
In that vein, the full Senate ought to vote on each one of the President's nominees to high office. The Senate should do so as a matter of prudence and in keeping with the comity that is required of each branch of government to the others, whether the Constitution or the Senate's current rules requires such a vote or not. This is particularly true for those who have been nominated for a lifetime post in the judicial branch. The procedures the Senate adopts for such nominations affect more than just the business of the Senate; they also touch on the constitutional obligations of both other branches of government. The President has the obligation to nominate and appoint judges to fill up vacancies in the federal courts, and confirmed judges are the only individuals who can exercise the power conferred in Article III of the Constitution.
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A full-Senate vote is even more appropriate where it is fairly clear that a majority of the Senate would vote to confirm the nominees, which is still the case with Charles Pickering and Pricilla Owen. Both Pickering and Owen received well-qualified ratings from the American Bar Association (ABA) review panel. In April 2001, Senator Leahy described a positive rating by the ABA as the ''gold standard.'' Gold does not tarnish, so it is unclear why Senator Leahy and other Democrats on his committee have now abandoned their high regard for the ABA review panel.
No Republican senator announced opposition to either Pickering or Owen, and at least one senator from the majority announced support for both of them. Democratic senators who expressed their support for Pickering and Owen are not on the Judiciary Committee, but they sought the opportunity to vote on the nominations. Yet, the Senate Judiciary Committee refuses to forward these nominations to the full Senate—even with a negative recommendation, and Majority Leader Tom Daschle does nothing to bring the nominations to the Senate floor. Whether or not the Constitution or the Senate rules require such a full-Senate vote, it is still undemocratic for the current Senate leadership to block a presidential nomination from even being debated on the Senate floor. Ten senators are currently dictating the composition of the federal bench. Even a filibuster by a minority of the Senate would be less cowardly than the current practice.
THE CAUSE OF SUSTAINED HIGH VACANCIES IN THE FEDERAL COURTS
The most serious problem with the confirmation process is not the Senate Judiciary Committee's refusal to forward nominations that it has acted on to the full Senate, but its refusal to complete its action on most court of appeals nominations. Over the past several decades, the Senate sometimes has slowed down the confirmation process toward the end of a presidential term if the President and Senate majority are from different parties. Although some of President Clinton's judicial nominations were confirmed at the end of the 106th Congress, a slowdown in the last few months and the October adjournment of the 106th Congress contributed to a slightly higher than normal vacancy rate at the beginning of President George W. Bush's administration. (An even more severe slowdown took place at the end of President George H.W. Bush's administration.)
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There is always some delay in the judicial nomination process at the start of a new presidential administration. The President possibly could have begun sending judicial nominations to the Senate in March of 2001, but the delayed transition period for President Bush pushed back the normal FBI background check and clearance process for cabinet and sub-cabinet nominees. Some of these officials also help vet potential judges. The pace of President Bush's judicial nominations since early May of 2001 was record setting. Within a year of announcing his first nominees, the President had sent more than 100 judicial nominations to the Senate. The ABA completed its review and supplied its recommendation within about three weeks of each nomination. With one exception, so far the ABA has rated every one of President Bush's nominees either qualified or well-qualified.
Two judges who had received an earlier appointment from President Bill Clinton and a sitting district judge who was acceptable to Louisiana's Democratic senators were promptly confirmed for life-time seats on the appellate courts. Almost all of the remaining nominations languished in the Senate without hearings even being scheduled. For months, the rate of confirmation of all federal judges barely kept pace with retirements. The pace of confirmation of federal district judges has picked up in the past year, but the confirmation process for court of appeals nominees has been set at a glacial pace.
1. The vacancy statistics and periods of unreasonable delay by the Senate
In the past, confirmation battles were waged over certain Supreme Court nominees and a very few lower court nominees. As mentioned above, the Senate sometimes slowed down the confirmation process toward the end of a presidential term, but this slowdown was the exception rather than the rule. What's dramatically different now is the systematic refusal to act on many of President Bush's initial nominees, particularly his appellate court nominees. The number of vacancies on the federal courts has actually increased by about fifteen percent since the end of the last Congress. And during this Congress, most of President Bush's initial group of judicial nominees have been waiting for more than 17 months without so much as a hearing and a committee vote.
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Based on the practice of many federal judges in announcing their retirement in advance and my review of recent confirmation statistics, I believe that a vacancy rate of about three to four percent represents the ''full employment'' level (to borrow a term from economists) for the federal judiciary. Yet, the Senate Judiciary Committee's inaction and the Senate's overall slow pace on most of the President's appellate court nominees have resulted in much higher vacancy rates. On the federal district courts, 50 of 665 judge seats (or 7.5%) are vacant. On the federal appellate courts, 27 of 179 judgeships (or 15.1%) are vacant.
Retired Judge (and former U.S. Senator) James Buckley concluded that ''the Senate's willful failure to act upon a president's judicial nominees can only be described as an obstruction of justice.'' James L. Buckley, ''Obstruction of Justice,'' The Wall Street Journal, June 13, 2002, A.16. Judge Buckley pointed out that, when he was a senator, nominees of the caliber nominated by President George W. Bush ''would have been confirmed within weeks after their names had been submitted.'' Yet, it appears that a majority of President Bush's first eleven court of appeals nominees will not even have a committee vote 20 months after they were nominated.
Whether they all deserve to be confirmed or not (and the ABA thinks they are deserving), the Senate's conscious refusal to schedule hearings for most appellate court nominees is a shocking dereliction of duty. There may not be a committee vote by the end of this year for such distinguished professors, Supreme Court advocates, and judges as Deborah Cook, John Roberts, Jeff Sutton, Michael McConnell, Miguel Estrada, Terrence Boyle, and Timothy Tymkovich. That's inexcusable. Moreover, the two who did receive a hearing this fall (Michael McConnell and Miguel Estrada) may have to start the process all over again in 2003 if the full Senate does not vote on their nominations before the end of the current Congress.
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With regard to court of appeals nominees, the delays are many times worse than at any recent time. These delays strain the judiciary and are unfair to individual nominees. To the extent that an intentionally prolonged delay can damage a law practice and keep individual nominees in professional and personal limbo, it becomes cruel. As explained further below, those who rely on the federal justice system may suffer as well.
The American Bar Association (ABA) has consistently urged the Senate to act promptly to confirm judicial nominees. In August of 2002, however, the ABA House of Delegates approved an especially strong statement that for the first time specifically identified the Senate Judiciary Committee as a ''cause of blockage in the confirmation process'' and urged the Committee to take prompt action on nominations. The ABA said that: ''The notion that the Committee, by the simple expedient of refusing to hold timely hearings may avoid confirmation proceedings in the full Senate, is simply unacceptable to our notion of an appropriate and constitutional nomination process.''
A persistent but low vacancy rate is unavoidable, reflecting a small number of vacancies that are promptly filled. Most federal judges are appointed at the prime of their professional career, or slightly later. Statutes provide comfortable benefits for federal judges who assume a semi-retirement status at age 65 (and after they have served 15 years). Most judges assume this ''senior status'' soon after they become eligible. Some judges announce their retirement date (colloquially, it is referred to as ''going senior'') with enough advance notice to allow the President time to nominate a replacement, but other judges do not. Serious illness, death, and other unanticipated events cause some vacancies to arise without notice. Accordingly, there will always be some vacancies in the federal courts.
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In recent decades, when the confirmation process is running smoothly, the vacancy rate has dropped to around five percent. Chief Justice William Rehnquist has still admonished past Presidents and past Senates to act more expeditiously in nominating, confirming, and appointing judges to fill anticipated or actual vacancies. By comparison, a congressional seat is not left vacant for long before a special election is held (in the case of a House seat) or a temporary appointment is made (in the case of a Senate seat). When government officials are willing to spend a lot of time and money for a special election to fill 1/435th of the seats in the U.S. House of Representatives, Congress should make more of an effort to promptly fill numerous vacancies in the federal judiciary.
There were 67 judicial vacancies at the end of the 106th Congress and 77 now near the end of the 107th Congress, proving that the Senate is not even keeping pace with new retirements. Dueling statistics have unfortunately become commonplace in this debate, but there is one set of statistics that simply cannot be explained away. The stalling is undeniable when you consider the court of appeals nominations by themselves. The chart below shows the average number of days the first eleven circuit court nominees had to wait for final Senate action, and the respective confirmation rate by President.
67
Gaziano.eps
If you eliminate the judges nominated by President George W. Bush who were first appointed by President Clinton, the picture looks even worse. Only one of the nine non-Clinton judges has been confirmed, a total of 11%. The average wait approaches 500 days for the remaining nine nominees, and is in excess of 500 days for eight of them. As this testimony is being prepared, seven of them have not had a committee vote and four have not even had a hearing.
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Recently, Judge Buckley urged that the Senate rules be changed to allow the Judiciary Committee a few months to review the qualifications of judicial nominees and make its recommendation. Judge Buckley argued that the full Senate should vote after a few months whether or not the committee had acted. The current Chairman of the Senate Judiciary Committee, Patrick Leahy, proposed similar procedures just a few years earlier. Senator Leahy sponsored a bill in 1998 that would have required the Senate to act on all nominations pending for more than 60 days before it took a ten-day or longer recess. See S. 1906, 106th Congress.
Pursuant to his own legislative plan, Senator Leahy should at least have finished committee action on Miguel Estrada, Deborah Cook, John Roberts, Jeff Sutton, Michael McConnell, Dennis Shedd, Terrence Boyle, Timothy Tymkovich, Charles Pickering, and Priscilla Owen before the Senate took its August recess in 2001. Each of the nominees received a well-qualified rating from the ABA. Each of their nominations had been pending in his committee for over 60 days by then, most for over 80 days. But Leahy did not complete committee action on any of the above nominees by the August 2001 recess. Of those listed above, only Pickering, Owen, and Shedd were given hearings by the August 2002 recess-one year later. Many other court of appeals candidates nominated during the summer of 2001 have not had a committee hearing either.
Although the federal courts of appeals have an overall vacancy rate of over fifteen percent, some circuits have had a sustained vacancy rate of between thirty and fifty percent. The situation in the U.S. Sixth Circuit Court of Appeals is the most dramatic. During the Clinton Administration, the Chief Judge of the Sixth Circuit wrote to the Senate Judiciary Committee to express his deep concern regarding four vacancies in the sixteen-member court. He wrote that his court was ''hurting badly'' and that the situation was ''rapidly deteriorating due to the fact that 25% of the judgeships are vacant.''
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The Sixth Circuit was operating for most of this past year with only half of its authorized judges. It still has seven vacant positions today, a 44% vacancy rate. President Bush made seven nominations to that court in 2001, two of whom were in the very first batch sent to the Senate on May 9, 2001. (President Bush sent an additional nomination a few months ago.) But Senator Leahy has held a hearing on just two of them, and only one has been confirmed. As explained below, the Senate's complete inaction on the circuit with the highest vacancy rate has caused some particular hardships and led to some questionable judicial practices.
2. The Senate Judiciary Committee is not providing its advice and consent in a manner consistent with the Constitution or the rule of law.
In addition to the intentionally prolonged delay in voting on most of the President's judicial nominations, several of the hearings that were conducted by the Senate Judiciary Committee were not only irrelevant to the merits of individual nominees, they instead attempted to lay the predicate for improper questioning at later confirmation hearings. In keeping with this agenda, hearings that were conducted for appellate court nominees during this Congress have been intentionally confrontational and focused on matters that are not properly the subject of such a hearing.
The few hearings that were conducted for appellate court nominees focused on a nominee's supposed political beliefs rather than his or her qualifications or philosophy of judging. Texas Supreme Court Justice Priscilla Owen was cross examined for seven hours in one hearing this past July, despite her obvious qualifications to join the U.S. Fifth Circuit Court of Appeals. Justice Owen received a unanimous well-qualified rating from the ABA. Justice Owen's reelection to the Texas Supreme Court in 2000 was endorsed by every major newspaper in Texas, and Owen won the support of a record number of voters in Texas. Yet, on a party-line vote, the Senate Judiciary Committee voted in early September to block her confirmation based on supposed ideological concerns. Last month, committee Democrats also tried to discredit and bully Miguel Estrada over his purported personal ideological leanings.
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This conduct is based on a fundamental misconception some senators have regarding the proper role of judges and our judicial system. There is a crucial difference between political ideology, which is a set of political beliefs or goals, and a nominee's judicial philosophy, which is a theory of, or approach to, judicial decisionmaking. Political beliefs ought to play no role in a judge's judicial philosophy.
The rule of law is premised on the following bedrock principle: law can be objectively determined and fairly applied to all no matter what judge or other official is in power. The rule of law is an ideal, and every ideal is imperfect. Yet, American school children learn that this is an essential characteristic of our system of government. Ours is a nation of laws and not men, we are told. This is another way of saying that the application of the law does not vary depending on who is in charge. The law can be, and for the most part is, applied consistently and fairly to all. Any deviation from this norm is to be condemned, not encouraged.
Accordingly, the founding generation believed that the federal judiciary would be ''the least dangerous'' branch—in large part because they understood that the ''judiciary power'' was fundamentally different than that exercised by the political branches. In Federalist 78, Hamilton argued that legal traditions would cabin a judge's role and mode of decisionmaking. A judge, he maintained, would exercise ''judgement'' not ''will.'' His argument presupposed that such a distinction was intelligible and readily understood. That conception of law—that judges can objectively discern what the law is, rather than what it should be—was the governing orthodoxy for over 130 years.
Rule by the party embodies a different ideal—one practiced by many communist nations. In that system, all judicial rulings are supposed to conform to the then current dictates, plans, agenda, or beliefs of the governing party. What is desired more than anything else in a judge or other government official is the proper political ideology, because that best informs all other action. Since there is thought to be no objective truth, the correctness of a ruling may change if the party line changes. Generally, only long-time party members who have proven their personal allegiance to the party's teachings are entrusted with high government power.
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Antecedents of this thinking in America can be found in post-civil war nihilism, but the legal realists of the 1920s were the first to significantly undermine the rule of law. Legal realism, mingled with strains of pragmatism, relativism, and deconstructionist thought, captured the legal academy between the 1920s and 1960s. It began to bear substantial fruit in the courts thereafter. It is an oversimplification, but the orthodox thought of this era—running at least through the mid-1980s—is that law is just politics by another name.
This development is profoundly misguided and destructive. Yet, it is not surprising that its adherents increasingly urged the courts to become instruments of social change in overtly political ways. The courts' rulings ending government discrimination were (and are) necessary, but the tools the courts developed to fight the massive resistance to civil rights were also invoked to promote more amorphous social goals without clear constitutional foundations.
For a judge, such a seductive request is difficult to resist, even more so if the dominant legal culture has eliminated the traditional moral constraints on judging. With differences of style rather than content, the courts began to assume the role of another political branch to which dissatisfied citizens could turn to have their personal preferences, their will, enacted into law.
In this climate, it is easy to see why judicial confirmation battles might develop for Supreme Court justices. Unfortunately, the confirmation battles themselves further politicize the courts and reinforce the caustic notion that the courts are little more than a political plum. This notion was expressly stated by Abner Mikva and many liberal academics, who argue that Bush's Presidency is illegitimate. Still brooding about the correct Supreme Court ruling in Bush v. Gore, Mikva and others who should know better have urged the Senate to confirm no Bush nominee to the Supreme Court and encourage all means of thwarting his legitimate nominees to the appellate courts.
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Hearings conducted by Senator Charles Schumer last fall on ''whether ideology matters'' in judicial selection and more recently in connection with the D.C. Circuit Court are an outgrowth of that dangerous thinking. Perhaps ideology matters a great deal for a nominee or senator who believes that there is no meaningful difference between law and politics. But that belief would demonstrate to me that the nominee has an unacceptable judicial philosophy. No further inquiry into the nominee's political beliefs is necessary. Testimony offered by President Clinton's former Counsel, Lloyd Cutler, and President George H.W. Bush's former Counsel, C. Boyden Gray, urged the Senate not to focus on political ideology in judicial selection. They both also agreed that extensive partisan inquiry is harmful to an independent judiciary.
A nominee with an appropriate judicial philosophy is one truly dedicated to the rule of law. Senators should be free to probe a nominee's theory of judging, i.e., the methodology he would use when deciding cases, as long as the question does not ask the nominee to take a position on a matter that may come before him. Thus, I do not think that it is always enough for a nominee for a lower court judgeship to simply pledge that he will follow the law as set forth by the higher courts without explaining what that means. A record of scholarship or prior opinions, or a discussion of venerable old cases might help the committee to determine if the nominee appreciates what the rule of law requires.
I also think nominees reasonably could be asked to explain their general theory of various clauses of the Constitution. A competent grasp of the Constitution is necessary for any judge, and a discussion about its provisions might also be a good window on the nominee's approach to law and legal reasoning. Once again, however, senators must be careful not to ask the nominee about a particular subject matter or legal is