Senate Rules and Norms, Not the Size of the Federal Government, are to Blame for the Broken Judicial Confirmation Process

Saying the judicial confirmation process is broken is a bit like complaining about the temperature in a house that is on fire.  That is, the problems associated with confirming judicial nominees exist because the entire legislative process is broken.  Nevertheless, commentators (including myself) focus on the judicial confirmation mess[1] because the process has grown increasingly contentious, as John Lott notes, and because the problems are obvious and manifest a failure by the Senate to fulfill one of its constitutional duties.  To me, however, the greatest concern is not that the wrong or less-qualified judicial nominees are taking the place of other, better-educated candidates, as Lott suggests.  Instead, the consequences are much more severe than that: pushing the two political branches toward a constitutional showdown, fostering a judicial vacancy crisis, and ultimately threatening the separation of powers.[2]

Evidence of a broken confirmation process abounds.  A lower percentage of President Obama’s judicial nominations have been confirmed than was true for George W. Bush or Bill Clinton.  Only 56 percent of President Obama’s district court nominees were confirmed during his first two years – when Senate Democrats held 59 or 60 seats.[3]  More significantly, the judicial vacancy rate has actually increased during President Obama’s time in office, whereas George W. Bush saw a 40 percent decrease in the vacancy rate during his eight years.  Even those fortunate nominees who are confirmed face considerable delays and obstruction.   

The roots of this judicial confirmation mess can hardly be said to rest with the growth of the federal government.  After all, the New Deal era saw a monumental increase in the size of the federal government, but with no accompanying problems in the judicial confirmation process.  Moreover, the size of the federal government has decreased during President Obama’s time in office,[4] but the judicial confirmation wars have only grown more intense.

It is fair to say, as Lott does, that judges have come to possess increasing influence over public policy issues of the day, and that many of these are highly contentious.  But again, that is not related to the size of the federal government.  Consider the hot-button issues facing courts today:  gay marriage, affirmative action, criminal procedural rights, the death penalty, and, of course, abortion (Lott calls abortion the “signature issue during confirmation battles”).  These have nothing to do with the size of the federal government—indeed, most of these cases do not even involve the federal government.  While it is true, therefore, that the process for confirming judges has become more politicized as judges decide more political questions, there is little to support—and much to contradict—tying the broken system to the size of the federal government. 

The real cause of the problem resides in the Senate’s institutional rules and norms, along with the electoral incentives pushing senators to delay and obstruct judicial candidates nominated by the president of an opposing party.  This latter point is well documented.  As other noted scholars have observed, “Both parties…have made the plight of potential judges central to their campaigns for the White House and Congress.”[5]  There is a reason why Senator Barack Obama voted against John Roberts to be chief justice, and it was not based on Roberts’s qualifications, which no one could seriously doubt.  Instead, it was about positioning himself for the Democratic presidential nomination contest.  Similarly, and I would contend, more blatantly and unfortunate given his role in the Senate, Republican Leader Mitch McConnell has made it his mission to obstruct every aspect of President Obama’s agenda, including judicial nominees.  The cause has become more urgent to Senator McConnell as he faces a primary challenge from his right.  All that said, it seems difficult, if not impossible, to address the electoral system’s role in distorting the judicial confirmation process.   

That leaves us with the Senate’s procedures, rules, and norms as the culprit most easily addressed.  Indeed, the Senate’s majority has recognized this fact by recently restricting the ability of obstructionist elements from fully blocking judicial and executive branch nominees.  Up until that change in November 2013, Senate rules permitted a small minority to obstruct and delay judicial nominations at will.  For over 200 years, those rules were rarely used to block Presidents from fulfilling their constitutional duty to appoint federal judges.  Something changed recently.  Democrats and Republicans can (and do) debate what sparked the change and which party is responsible.  Indeed, just as Democrats today denounce the obstructionist tendencies of Senate Republicans and so turned to a rule change to address the matter, Senate Republicans nearly changed the rules in a similar fashion less than a decade ago.  It is unnecessary for my point to dive into the middle of this ultimately unanswerable (or, at least, unsatisfying) debate.  It suffices to say that both sides recognize that the primary causes of the broken judicial confirmation process are Senate rules and norms that give the party opposing the President the power to block judicial nominations with impunity.  Couple that with the electoral incentives to act in such an obstructionist way, and the system breaks down. 

It is for this reason that the Senate took an important and worthy step when it reformed its cloture rules for nominations late last year.  The efficacy of the move can be seen in the progress already made in filling many of the long-existing vacancies on the federal judiciary in the short time since that change.  But there’s more work to be done to repair the system.  The policy of blue slips and holds continue to give individual senators far too much power to affect the ability of the President to nominate, and the Senate to appoint, judicial nominees.  Those norms, too, need to be changed to account for the current political pressures that encourage obstructionism for obstructionism’s sake.

For the past decade, the judicial confirmation process has proven to be something of a crapshoot.  The President would nominate a qualified individual to serve as a district or circuit court judge, and nominees would then face an unknown and perilous path with little certainty of confirmation.  This has a deteriorating effect on the willingness of individuals to serve.  The recent reforms go a long way to addressing the recent problems plaguing the judicial confirmation process and return the system to something much closer to what the Framers intended. 

 

Notes 


[1] Stephen L. Carter, The Confirmation Mess:  Cleaning Up the Federal Appointments Process New York: Basic Books, 1995. 

[2] Michael J. Teter, “Congressional Gridlock’s Threat to Separation of Powers,” Wisconsin Law Review 1097 (2013)http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1601345.

[3] Sheldon Goldman, et al., Obama’s Judiciary at Midterm:  The Confirmation Drama Continues, 94 Judicature 262, 293 (2011).

[4] As measured by federal spending as a percentage of GDP and as measured in the number of federal employees. 

[5] Sarah Binder & Forest Maltzman, “Advice and Consent During the Bush Years:  The Politics of Confirming Federal Judges,” 92 Judicature 320, 328 (2009).

Also from This Issue

Lead Essay

  • How the Courts Got Dumbed Down by John R. Lott Jr

    John R. Lott, Jr. lays out the evidence that the judicial confirmation process is broken. Nominations are taking longer on average. They’re growing nastier. And Lott’s research shows that the most objectively qualified nominees are the ones who have it worst. The reason why is easily understood: Other things being equal, no one, whether a Republican or Democrat, wants to see the smartest, most persuasive of one’s ideological opponents on the bench. Lott’s remedy is a familiar one to libertarians: Reduce the size and scope of judicial activity in all of our lives. Lower the stakes, and the conflict will ease. This, though, can only be done by reducing the scope of the federal government itself.

Response Essays

  • Judicial Nominations and the Freedom Movement by Clint Bolick

    Clint Bolick agrees that the growth of government has made the judiciary more influential. But he recommends that libertarians take advantage of the opportunity it presents: Advocates of economic and personal liberty have lately enjoyed some measure of success in the courts, thanks in part to organizations like the Federalist Society, which has done much to promote qualified judicial candidates. We owe it to ourselves to capitalize on the importance of the modern judiciary.

  • Originalism Can Help Solve This Problem by John O. McGinnis

    John O. McGinnis argues that the real problem with our courts lies in their lower echelons: The Supreme Court consists of manifestly qualified and able judges, all of whom attended our top two law schools, among their other impressive qualifications. But at the lower end, the public isn’t paying attention, and nominees who are otherwise qualified can be sunk for political reasons. McGinnis applauds the elimination of the filibuster for nominations, but he suggests that a cultural change may also be in order: the return to originalism in judging and legal scholarship. Although an originalist judge may have some latitude for interpretation, that latitude is greatly reduced when compared to a living constitutionalist judge. This, McGinnis suggests, will reduce politicking on the courts.

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