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.
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.
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.
Average Number of Days Initial 11 Court of Appeals Nominees Court of Appeals
President Average Number of Days Initial 11 Court of Appeals Nominees Waited for Final Senate Action Court of Appeals Confirmation Rate
Reagan 39 100%
G.H.W. Bush 95 100%
Clinton 115 100%
G.W. Bush approximately 400 (and counting) 27% (thusfar)
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.
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.”
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.
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