JUDICIAL APPOINTMENTS IN THE 107 TH CONGRESS

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1 JUDICIAL APPOINTMENTS IN THE 17 TH CONGRESS By Thomas L. Jipping, J.D. Senior Fellow in Legal Studies Concerned Women for America CONCERNED WOMEN FOR AMERICA 115 Fifteenth Street, N.W. Suite 11 Washington, D.C. 25 (22) Fax: (22)

2 Judicial Appointments During the 17 th Congress by Thomas L. Jipping 1 I. A President s Most Profound Legacy The Constitution gives to the president the power to nominate and, with Senate consent, to appoint federal judges. 2 Former Senate Majority Leader Bob Dole s 1996 observation that a president s judicial appointments are his most profound legacy was correct for several reasons. First, a president will appoint many lower court judges even if he does not appoint a Supreme Court justice. 3 Since 1976, presidents have appointed an average of 5 judges per year, 4 to the U.S. District Court and 1 to the U.S. Court of Appeals. 4 Second, judges have unlimited terms, the Constitution permitting them to serve during good behavior, 5 that is, until they either leave voluntarily or are removed by impeachment. This can be a very long time. U.S. District Judges David Edelstein and Seybourn Lynn, for example, died in 2 after 48 and 55 years, respectively, on the bench. Appointed by President Harry Truman, each was more than 9 years old. The overall federal judiciary currently is evenly balanced, with 5.3 percent of full-time federal judges appointed by Republicans and 49.7 percent by Democrats. 6 Some individual appeals courts, however, are seriously out of balance. On the Ninth Circuit, 7 for example, 17 of the 24 fulltime judges (71 percent) are Democrat appointees, 14 of them by President Clinton. On the Sixth Circuit, 8 six of the nine (67 percent) full-time judges are Democrats, five of them by President Clinton. Third, and perhaps most importantly, these many long-serving judges are very powerful. By saying what statutes and the Constitution mean, judges effectively say what statutes and the Constitution are. If judges take the law as they find it, accepting what the lawmaker has already done, the rule of law remains intact and the people can govern themselves. If, however, judges make the law as they want it, giving it whatever meaning is necessary to achieve certain results, the rule of law disappears and judges govern the people for them. A president s true judicial legacy depends on which kind of judge he appoints. 2

3 II. President Bush s Legacy A. Nominations 1. A Clear Standard During the 2 campaign, candidate George W. Bush clearly identified with one side in this debate. He promised to appoint strict constructionist judges who will interpret the law, not make it. Sending his first judicial nominations to the Senate on May 9, 21, President Bush outlined the standards by which I will choose all federal judges. Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench. My judicial nominees will know the difference. 9 Since the Senate cannot confirm nominees until it receives them, a president s diligence at the beginning of the process can significantly affect its ultimate results. Three factors particularly affect a president s nominating activity: when he starts nominating, how many nominations he makes, and when he makes them. 2. Starting Early New presidents typically begin nominations well into their first year, make relatively few, and often nominate many too close to adjournment to allow Senate consideration. President Bush defied that pattern, pursuing his nominating task more aggressively than previous new presidents. This was particularly important since Democrats gained control of the Senate. President Bush sent his first nominees, a group of 11 appeals court picks, to the Senate on May 9 of his first year, compared to August 6 for President Clinton, August 4 for the first President Bush, and July 9 for President Reagan. 3. Record Nominations In addition to starting earlier, President Bush also made more first-year nominations than previous presidents. First-Year Judicial Nominations Reagan Bush Clinton G.W. Bush 3

4 4. Appeals Court Focus President Bush s early priority was making nominations to the U.S. Court of Appeals. When Republicans ran the Senate under President Clinton, appeals court vacancies averaged 2 and topped 25 in just five of those 72 months (1995-2). In contrast, appeals court vacancies had reached 31 by May 21 when President Bush sent his first nominees to the Senate. He nominated 91 percent of his appeals court nominees in 21. President Bush s nominations break down as follows: Court Total U.S. District Court U.S. Court of Appeals U.S. Court of International Trade 1 1 Totals Plenty of Confirmation Time The complexity of the confirmation process means that most late nominations cannot be confirmed, and late nominations can pad a president s nomination total while failing to result in actual judicial appointments. President Bush sent only eight of his 131 nominations to the Senate less than three months prior to its final adjournment. B. Confirmations 1. First Year President Bush started nominating earlier than previous presidents, sending a record 44 nominations to the Senate before its annual August recess, 56 at least three months before adjournment, and a record 67 for the year. The Senate, however, confirmed only 28 judges in 21, a confirmation rate far lower than for previous presidents. Percent of First-Year Nominees Confirmed in First Year Reagan Bush Clinton G.W. Bush 4

5 2. First Two Years a. Overall total During the 17 th Congress, the Senate confirmed 83 nominees to the U.S. District Court and 17 to the U.S. Court of Appeals. The total matches the recent overall average, though it masks the slow pace of 21, the comparatively few appeals court confirmations, and is substantially below the total approved for President Clinton. Total Confirmations, First Two Years Clinton G.W. Bush b. The partisan differential The federal judiciary was the same size, and Democrats controlled the Senate, during the first two years of both the Clinton and current administrations. As such, the significant difference in confirmation totals suggests a partisan motivation. When they run the Senate, Democrats confirm 33 percent more nominees for their own party s president; Republicans confirm 2 percent more. Partisan Confirmation Differential Democrat Senate Republican Senate Same Party Opposite Party 5

6 c. Appeals court vacancy crisis In his annual report on the judiciary for 21, Chief Justice William Rehnquist repeated his 1997 warning about judicial vacancies resulting from the often lengthy and unpleasant nature of the confirmation process. 1 Vacancies increased in those four years, and the Chief Justice had to again call on the Senate to schedule up or down votes on judicial nominees within a reasonable time after receiving the nomination. 11 While the Senate s confirmation total rose in 22, its consideration of appeals court nominees remained stagnant. In fact, President Bush saw the lowest appeals court confirmation rate of any recent president. Percentage of Appeals Court Nominees Confirmed During First Two Years Carter Reagan Bush Clinton G.W. Bush Since President Bush started nominating earlier than previous presidents, the Senate s treatment of that first group of nominees reflects its overall intention. Adjourning 56 days later, it had confirmed five, defeated one in the Judiciary Committee, held a hearing but no vote on one, and refused a hearing to the other four. The previous three presidents first 11 appeals court nominees were confirmed in an average of 81 days, with none taking more than 22 days. The following charts show, for both district and appeals court nominees, the percentage confirmed and the length of time pending for those left unconfirmed. Those nominated earliest languished the longest Percentage Confirmed District Court Court of Appeals Avg. Days Pending for Unconfirmed Nominees District Court Court of Appeals 6

7 C. Confirmation Obstruction Because the Democrat Party s most powerful political constituencies have an unpopular political and cultural agenda, they seek to achieve that agenda by an activist judiciary imposing it. Not surprisingly, they oppose the kind of judges President Bush pledged to appoint. 1. Obstruction from the minority While still in the minority in early 21, Senate Democrats sought to show Bush they have the ability to defeat conservative nominees in the future, particularly candidates for any Supreme Court vacancy." 12 They did so in two ways. First, they assembled votes against some early nominees sufficient to sustain a filibuster. Then-Minority Leader Sen. Tom Daschle (D-South Dakota), said that more than 4 votes against former U.S. Sen. John Ashcroft s nomination to be Attorney General would be the strongest statement I think we could make. 13 That statement would be so strong for several reasons. First, the Senate traditionally gives the president substantial deference in choosing his Cabinet. Second, the Senate is particularly deferential to former colleagues. Third, and most important, 41 is the magic number of votes 14 needed to sustain a filibuster. Sen. Daschle said that if the time comes when it may be required, even on a nomination, that 41 of us stand together; we will be there. 15 Democrats were determined to send a message to President George W. Bush through the strength of their opposition. 16 Before the Senate vote on the Ashcroft nomination, Sen. Charles Schumer (D-New York) made clear that the vote would send such a signal: I hope when [President Bush] nominates people to the United States Supreme Court we will not have a repeat of what has happened here today. 17 Sen. Daschle affirmed that it s really important for us to send as clear a message as we can that we ll use whatever means necessary to block undesirable judicial nominees. 18 Democrats soon proved that the field of combat is far wider than potential Supreme Court openings. 19 Second, they sought to prevent the ordinary process of hearings and votes from getting under way at all. Then-Judiciary Committee Chairman Sen. Orrin Hatch (R-Utah), for example, had scheduled a hearing on three appeals court nominees for May 23, Committee Democrats succeeded in blocking the hearing and, the next day, Sen. James Jeffords of Vermont left the Republican Party, allowing Democrats them to assume effective majority control. None of the nominees to be considered in that initial planned hearing Jeffrey Sutton and Deborah Cook for the Sixth Circuit and John Roberts for the D.C. Circuit received a hearing during the 17 th Congress. 7

8 2. Obstruction from the majority In the majority, Democrats chaired the Judiciary Committee and ran the Senate; they determined whether and when to act on nominees. Just as President Bush focused his nomination activity on the U.S. Court of Appeals, so Senate Democrats focused their obstruction strategy there. The very low appeals court confirmation rate contributed to an unprecedented number of first-year nominations left unconfirmed when the 17 th Congress finally adjourned on November 2, 22. First-Year Nominations Left Unconfirmed Reagan Bush Clinton G.W. Bush a. Misusing the blue slip system Majority status allowed Senate Democrats to use several tactics to obstruct President Bush s nominees. First, they misused the so-called blue slip system, which allows senators to signal early opposition to a nominee who would serve in their state. The Judiciary Committee traditionally declines to hold a hearing when a home-state senator withholds a nominee s blue slip. In 21, however, Democrat Senators withheld blue slips, not to block nominees they opposed but to manipulate President Bush s nominations to others vacancies. Sen. John Edwards (D-North Carolina), for example, blocked Terrence Boyle, 21 nominated to the U.S. Court of Appeals for the Fourth Circuit, 22 to demand a more activist nominee for another vacancy. 23 b. Misusing the Judiciary Committee The Judiciary Committee s proper judicial selection role is to give nomination recommendations to the full Senate. The committee does not itself vote on a nomination, but on one of three recommendation: favorable, unfavorable, or none at all. If the process is working properly, the committee may fail to hold a hearing or vote, 24 but nominations do not fail to get out of the committee because it has voted to deprive the Senate of the chance to give its consent. 8

9 Senate Democrats, however, did just that. The committee voted 9-1, along party lines, against sending the nominations of Charles Pickering 25 and Priscilla Owen 26 to the full Senate at all. This means they refused even to give a negative recommendation. The reason was clear; in both cases, enough Democrat Senators had publicly announced their support to ensure full Senate approval. Democrats claimed fairness in bringing these nominations up for a committee vote, then defeated them by keeping the full Senate from doing its constitutional duty at all. The Judiciary Committee has defeated only six judicial nominees this way in the past 6 years, five of them when Democrats controlled the Senate. 27 Republicans never defeated a Clinton nominee in the Judiciary Committee; Ronnie White, the only Clinton nominee defeated in the full Senate, was approved by the Judiciary Committee. 3. Confirmation Obstruction Index Most analysts compare individual statistics about nominations, confirmations, or vacancies. These can be useful, but highly misleading. Some groups such as People for the American Way, for example, frequently compare confirmations during a period beginning in July 21 with previous calendar years. A better standard would measure confirmation activity over time. The Confirmation Obstruction Index divides average judicial vacancies by total judicial confirmations over a specific period of time. High vacancies with low confirmations indicate confirmation obstruction; low vacancies with high confirmations indicate confirmation progress. The index can be refined further by incorporating the number of nominees available for confirmation over a period of time. It disproves the frequent claims of Senate Democrats and leftist groups that confirmation performance for President Bush exceeded that for President Clinton. Confirmation Obstruction Index GOP Under Clinton Dems Under Bush 9

10 D. Changing the American Bar Association s Role Another significant judicial selection event during the 17 th Congress concerned the unique, quasi-official role played by the American Bar Association (ABA). 1. The controversy The ABA created its Standing Committee on the Federal Judiciary in Since 1952, the ABA alone was allowed to evaluate and rate judicial candidates prior to their nomination; even the liberal Washington Post admits this amounted to a virtual veto power before a nomination was made. 28 This quasi-official role at least arguably retained some justification so long as the ABA itself remained focused solely on issues relating to the practice of law or administration of justice. In 1965, then-aba President (and later Supreme Court Justice) Lewis Powell wrote that the prevailing view is that the Association must follow a policy of noninvolvement in political and emotionally controversial issues however important they may be unless they relate directly to the administration of justice. 29 The ABA abandoned that path. Since the 197s, it has lobbied for legislation from the Uniform Abortion Act to the Americans With Disabilities Act and opposed legislation from tort reform to welfare reform. The ABA supports special rights for homosexuals, racial preferences in employment and law school admissions, gun control, and federal funding of abortion. 3 The list of purely political issues on which the ABA has taken a public position goes on and on. The ABA s nominee-evaluation committee s procedures further undermined the case for its exclusive veto power. The ABA president alone chooses the committee members, who remain unaccountable to the ABA s House of Delegates, or even its Board of Governors. Only two committee members actually investigate and rate candidates, using subjective guidelines that actually encourage consideration of candidates politics. The 1977 guidelines permitted a low rating because of a candidate s extreme views. Even the current criteria base conclusions about a candidate s judicial temperament on subjective impressions of his compassion open-mindedness freedom from bias and commitment to equal justice under the law. 31 In March 199, several members of the Senate Judiciary Committee wrote then-attorney General Richard Thornburgh arguing that the ABA can no longer claim the impartial, neutral role it has been given in the judicial selection process. 32 That role, however, remained unchanged. 2. President Bush s decision In a letter dated March 22, 21, White House Counsel Alberto Gonzalez informed then- ABA President Martha Barnett that the ABA would no longer enjoy a unique, quasi-official role and thereby have its voice heard before and above all others. It would be particularly inappropriate, in our view, to grant a preferential, quasi-official role to a group, such as the ABA, that takes public positions on divisive political, legal, and social issues that come before the courts. 1

11 3. The ABA s treatment of Bush nominees The ABA says that it now evaluates nominees after their nominations have been made public, preserving to the extent possible the procedures it had developed and followed for over fifty years, and has continued to provide its evaluations of nominees to the White House, the Attorney General and the Senate Judiciary Committee. 33 Though the ABA said it could complete evaluations in 2 to 3 days, 34 it met that standard for just two of the 1 judicial nominees confirmed in the 17 th Congress. The ABA actually took an average of 56 days to complete evaluations of those confirmed nominees, taking at least twice as long as promised to complete evaluations on 45 percent of them. The following table summarizes the ratings, unanimous as well as split, for the 1 Bush nominees confirmed during the 17 th Congress. Only one nominee received a majority not qualified rating, 35 while 7 percent received a majority or unanimous well qualified rating. Unanimous (WQ=Well Qualified Q=Qualified NQ=Not Qualified) Subst. Majority Minority U.S. Dist. U.S. Court TOTAL Majority Court of Appeals WQ 3 (36.1%) 5 (29.4%) 35 WQ Q 14 (16.9%) 1 (5.9%) 15 WQ Q/NQ 1 (1.2%) 1 WQ NQ 1 (5.9%) 1 WQ Q 14 (16.9%) 4 (23.5%) 18 Q 14 (16.9%) 5 (29.4%) 19 Q WQ 1 (1.2%) 1 Q NQ 1 (1.2%) 1 (5.9%) 2 Q WQ 3 (3.6%) 3 Q NQ 4 (4.8%) 4 NQ Q 1 (1.2%) 1 TOTAL III. Conclusion Following a clear standard, President Bush started making judicial nominations earlier and made more of them than previous new presidents. He sent those nominations to the Senate in plenty of time for confirmation. Senate Democrats, however, confirmed few nominations in 21. In 22, Democrats padded their overall confirmation total by approving district court nominations but used unprecedented tactics to obstruct President Bush s appeals court nominees. In so doing, they followed Sen. Daschle s vow to use whatever means necessary and can be expected to do the same in the 18 th Congress. 11

12 NOTES 1 Senior Fellow in Legal Studies, Concerned Women for America. M.A. in political science, State University of New York (SUNY) at Buffalo, 1989; J.D. cum laude, SUNY-Buffalo (1987); B.A. with honors, Calvin College (1983). Law clerk to Judge William D. Hutchinson, U.S. Court of Appeals for the Third Circuit ( ). 2 U.S. Constitution, Article II, Section 2. 3 Only one full-term president, Jimmy Carter, did not appoint at least one Supreme Court justice. Three others William Henry Harrison, Zachary Taylor, and Andrew Johnson served only a partial term without making a Supreme Court appointment. 4 Sources for the data used in this report include the Administrative Office of the U.S. Courts, Federal Judicial Center, U.S. Senate Judiciary Committee, Congressional Record, and U.S. Department of Justice. 5 U.S. Constitution, Article III, Section 1. 6 Not surprisingly, President Clinton has the largest stamp on the judiciary, having appointed 44.7 percent of all full-time judges. See data at 7 The Ninth Circuit has 28 full-time positions and includes the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, and the territories of Guam and the Northern Mariana Islands. President Bush has appointed one member of the court. Neither of his other two nominees received a Judiciary Committee hearing during the 17 th Congress. 8 The Sixth Circuit has 16 full-time positions and includes the states of Kentucky, Michigan, Ohio and Tennessee. President Bush has appointed two members of the court. None of his other six nominees received a Judiciary Committee hearing during the 17 th Congress. 9 (emphasis added) Id. In his latest report for the year 22, the Chief Justice wrote: On behalf of the Judiciary, I urge the President and the Senate to work together to fix the underlying problems that have bogged down the nomination and confirmation process for so many years. We simply ask that the President nominate qualified candidate with reasonable promptness and that the Senate act within a reasonable time to confirm or reject them Quaid, Senate Majority Votes for Ashcroft, 4-Plus Democrats Vote No, Associated Press State & Local Wire, February 1, 21. See also Mitchell, Ashcroft Debate Shows Deep Rifts, New York Times, February 1, 21, at A1. (Democrats were determined to send Mr. Bush a message that they would fight conservative Supreme Court nominees. ) 13 Quoted in Boyer, Ashcroft Will Meet Critics After Vote, Washington Times, February 1, 21, at A4. 14 Quaid, supra note Quoted in Mitchell, supra note Knowlton, Ashcroft Battle: A Signal to the President, International Herald Tribune, February 1, 21, at Congressional Record, February 1, 21, at S954 (emphasis added). 18 Minority Leader s News Briefing, February 1, Anderson, Democrats Look to Battles After Ashcroft, Los Angeles Times, February 1, 21, at A14. 2 See Hudson, Senate Panel Releases Papers to Back Olson, Washington Times, May 23, 21, at A President Bush nominated Boyle, currently Chief U.S. District Judge for the Eastern District of North Carolina, on May 25, Sen. Jesse Helms (R-North Carolina) withheld his blue slip on various Clinton nominees to this same position, but because he opposed those nominees for various reasons. Sen. Edwards, in contrast, has never suggested he opposes the Boyle nomination. Instead, he is blocking this nomination to pressure President Bush to nominate someone he wants to another Fourth Circuit vacancy. 24 While voting down a nominee in the Judiciary Committee, especially when the full Senate is prepared to confirm her, has no purpose but obstruction, failing to hold a hearing or vote has various causes. A senator may, for example, withhold his blue slip on a nominee or the committee may receive a nomination with insufficient time to complete the confirmation process. Refusal to hold a hearing or vote may, on the other hand, be for no purpose but obstruction.. The Judiciary Committee, for example, refused to hold a hearing on Sixth Circuit nominees Deborah Cook and Jeffrey Sutton of Ohio. Both home-state senators, Mike DeWine and George Voinovich, returned their blue slips on May 18, 21. The nominations sat for 551 days without a hearing. Similarly, the committee refused to hold a hearing on Tenth 12

13 Circuit nominee Timothy Tymvovich of Colorado. Both home-state senators, Wayne Allard and Ben Campbell, returned their blue slips in June 21. The nominations sat for more than 5 days without a hearing. Neither nominee for the D.C. Circuit, John Roberts or Miguel Estrada, required home-state approval because the District of Columbia is not a state. Each was nominated on May 9, 21. The committee refused to hold a hearing on Roberts at all, and refused to take a vote on Estrada. 25 President Bush nominated Pickering, currently on the U.S. District Court for the Southern District of Mississippi, on May 25, 21. The Judiciary Committee held hearings on October 18, 21, and February 7, 22, and defeated the nomination on March 14, President Bush nominated Owen, currently on the Texas Supreme Court, on May 9, 21. The Judiciary Committee held a hearing on July 23, 22, and defeated the nomination on September 5, 22. This was the first time the committee had defeated a female nominee and the first time it had defeated a nominee receiving a unanimous well qualified rating from the American Bar Association. 27 The others were appeals court nominee Kenneth Ryskamp, defeated on April 11, 1991; appeals court nominee Bernard Siegan, defeated on July 14, 1988; district court nominee Jefferson Sessions, defeated on June 5, 1986; and district court nominee Charles Winberry, defeated on March 4, Editorial, The Washington Post, August 21, 1988, at C6 (emphasis added). 29 Powell, The President s Page, American Bar Association Journal (February 1965), at 11 (emphasis added). 3 For a more extensive analysis of the ABA s role in judicial selection, see Jipping, Selecting and Confirming Federal Judges: What Has Gone Wrong?, Briefly Perspectives on Legislation, Regulation, and Litigation (National Legal Center for the Public Interest, October 1997), at American Bar Association, The ABA Standing Committee on Federal Judiciary: What It Is and How It Works, at 4-5, available at 32 See Jipping, supra note 9, at American Bar Association, supra note 1, at 1 n White House Counsel Alberto Gonzalez described this in a letter to Senate Judiciary Committee members Patrick Leahy and Charles Schumer dated March 22, 21, available at 35 President Bush nominated David Bunning to the U.S. District Court for the Eastern District of Kentucky on August 2, 21, and the Senate confirmed the nomination on February 14, 22, by unanimous consent. 13