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.)
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.
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.
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