A Diminished Judiciary: The Causes and Effects of the Sustained High Vacancy Rates in the Federal Courts
by Todd F. Gaziano
Testimony
October 10, 2002 |
Testimony before the House Judiciary Committee - Subcommittee on the Constitution
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, an independent 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.
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.
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.
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.
(CON'T)
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