There has been much controversy lately concerning the pace of Senate confirmations of Bush Administration judicial nominees, as well as the manner in which nominees ought to be scrutinized by the Senate. Following is a bibliography of materials to shed further light on this subject, as well as a history of the ABA's response on this general subject.
Materials on Senate Filibuster of Judicial Nominees
- Filibusters and the Constitution--November 2003
- Wall Street Journal, "Pirates We Be" discussing the Senate filibuster of judicial nominees
by Professor Stephen Calabresi May 14, 2003
- Hearing before the Senate Committee on the Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights on “Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its Right to Consent.” May 6, 2003
- An Exchange on the Judicial Confirmation Process
Prof. Stephen B. Presser, Northwestern University School of Law and Michael B. Rappaport, University Professor at the University of San Diego School of Law.
Federalist Society Hot Topics--May 8, 2003
- Debate on Judicial Confirmations
Hon. C. Boyden Gray, Wilmer Cutler Pickering and Nan Aron, President, Alliance for Justice
February 20, 2003
- 1968 Letter from the Lawyers Committee on Supreme Court Nominations regarding the Abe Fortas filibuster.
Role of Judicial Philosophy
- Judges Wars
Transcript of Federalist Society panel held on September 9, 2003 with Professor Ronald Rotunda, George Mason University School of Law, Manuel Miranda, Counsel to Senate Majority Leader Bill Frist, Jeffrey Berman, Subcommittee on Administrative Oversight in the Courts, and Chief Counsel to Senator Schumer and Elliot Mincberg, Vice President of People for the American Way. (PDF) Posted September 24, 2003.
- Hearings on the Judicial Confirmations Debate:
Hearing before the Senate Committee on the Judiciary Subcommittee on Administrative Oversight and the Courts on "The Senate's Role in the Nomination and Confirmation Process: Whose Burden?" September 4, 2001
- Testimony of Ron Rotunda
- Testimony of Dean Douglas Kmiec
- Testimony of Hon. Paul Simon
- Testimony of Mark Tushnet
Hearing before the Senate Committee on the Judiciary Subcommittee on Administrative Oversight and the Courts on "Should Ideology Matter?: Judicial Nominations 2001" June 26, 2001
- Senator Orrin Hatch
- Senator Charles Schumer
- Testimony of Boyden Gray
- Testimony of Lloyd Cutler
- Testimony of Steve Presser
- Testimony of Eugene Volokh
- Testimony of Clint Bolick
The American Bar Association
- ABA 2001 Legislative & Governmental Priorities
Protracted delays in the judicial nomination and/or confirmation process weaken the federal judiciary by depriving it of the judges needed to resolve disputes expeditiously. Protracted delays also contribute to dangerously crowded dockets, suspended civil case dockets, overburdened judges, and understaffed courts.
The Senate Judiciary Subcommittee on Administrative Oversight and the Courts held hearings on June 26 and September 4, 2001, to examine the role of ideology in the nomination and confirmation process. Over the last several Congresses, allegations that the nomination and confirmation process have been held hostage to politics have reached frenzied proportions and provoked calls for moderation and respect among the branches of government. Interbranch respect and restraint is the basic theme underlying the conclusions and recommendations of the 1997 ABA Report on Judicial Independence.ABA Policy
The ABA urges the President to nominate candidates for vacant federal judicial positions promptly and urges the Senate to hear and vote on those nominations in an expeditious manner. The ABA also urges the appointment and confirmation of minority lawyers of racial and ethnic diversity to all levels of the federal judiciary.
- The judicial selection and confirmation process is one of the most important constitutional responsibilities entrusted to the President and the Senate.
- The President and Members of the Senate need to work together to foster public trust and confidence in our justice system by creating a federal judiciary that reflects the rich diversity of America.
- The integrity and independence of the federal judiciary is threatened by protracted delays in filling judicial vacancies.
- Chronically understaffed courts have produced dangerously crowded dockets, delays in hearing criminal cases, suspended civil dockets, and overburdened judges.
An Independent Judiciary: Report of the ABA Commission on Separation of Powers and Judicial Independence
b. Judicial Appointments
"The nomination and confirmation process is the one point at which the political branches may exercise a check on the composition and quality of the federal bench. To these ends, it is appropriate and desirable for members of the Senate and the President to explore the qualifications, character and judicial philosophy of would-be judges.
Problems arise, however, when legitimate inquiries into a nominee's judicial philosophy degenerate into thinly veiled efforts to preordain how the nominee will rule on specific issues in the future. Such "litmus test" questions cut to the quick of would-be judges' decisional independence and are properly resisted by the nominees.
A strong and independent judiciary likewise turns on the orderly filling of judicial vacancies. Protracted delays in the nomination and confirmation process, whether by design or as a result of inefficiency, weaken the federal judiciary and should be avoided.
The Miller Center Commission on the Selection of Federal Judges was established in 1994 by the University of Virginia's Miller Center of Public Affairs to respond to the perceived growing crisis in the federal court system caused by lengthy delays in filling judgeships. The Miller Commission issued its report on May 15, 1996 which contained a number of significant recommendations, including the following:181
- Senators, in their "advice and consent" role, should identify good judgeship candidates before a vacancy occurs and the candidates should be thoroughly appraised and "vetted" either before the vacancy occurs or within 30 days after it;
- Senators should recommend two or more names to the President, in order of priority, for each vacancy to avoid delays in case a potential nominee becomes unavailable. In no case should a senator's recommendation go to the executive branch later than 90 days after a vacancy occurs.
- If a senator doesn't respond to the request for more than one name, the Administration should notify the senator of additional names the Administration would like to consider. The executive branch too should maintain lists of prospective judicial nominees.
- If senators haven't made recommendations within 90 days of a district court vacancy, the President should proceed with the administration's own nominee, and if confirmation is delayed, make a temporary, or "recess" appointment.
- The White House, Department of Justice, FBI and American Bar Association all should complete their investigations of candidates within 90 days of a vacancy.
- The ABA should have more than one representative from each circuit court on its Standing Committee on Federal Judiciary and should provide a brief explanation for its rating, to avoid charges that it sometimes takes political considerations into account.
- The White House and Justice Department should review current procedures to simplify them and avoid duplication and should consider eliminating personal interviews with candidates, to avoid the appearance of trying to influence candidates' judicial views.
- The Senate Judiciary Committee should increase the number of its staff attorneys investigating judicial nominees.
- If a nominee is noncontroversial, the Senate Judiciary Committee should forgo holding confirmation hearings.
- The committee should clear nominees for full Senate confirmation within two months of receipt of a President's nomination.
- Prospective nominees should be required to complete only a single questionnaire that supplies all the information sought by the Department of Justice, White House, ABA and Senate Judiciary Committee.
- Those agencies should explore whether it is really necessary or appropriate to obtain all the information presently sought.
- Congress should enact a statute providing that an additional judgeship is created on the date an incumbent becomes eligible for senior status (semi-retirement) even if the incumbent doesn't take senior status on that date. The number of authorized judgeships would be reduced by one when the incumbent takes senior status, fully retires or dies.
The Commission urges that judicial vacancies be filled without delay and further urges that the procedures recommended by the 1996 Report of the Miller Center Commission on the Selection of Federal Judges set forth above, should be fully considered."
- ABA Resolutions Regarding Judicial Vacancies:
- 1998 Midyear Meeting: Urge the President of the United States promptly to advance nominees for current vacancies for federal judicial positions and the Senate of the United States to hear and vote on those nominations in an expeditious manner. Urge ABA members and bar associations to contact the President and appropriate members of the Senate to urge prompt action on the nominations. 98M8A.
- 1997 BOG: Resolve that the Board of Governors of the American Bar Association, which includes members of the both political parties, urge the United States Senate promptly to hear and vote on pending nominations for United States District Courts and Court of Appeal and that such action is essential for the effective and efficient administration of justice in the United States. 1097BOG 2.11.
- Yes, the ABA Rankings Are Biased
Clinton's judicial nominees were much more likely to get a favorable rating.
By: James Lindgren
- Federalist Society ABA Watch Project
Several groups have served as "watchdogs" over the judicial nominations process. Here are some links to the work they have been conducting:
- The Center for Individual Freedom: "The judicial confirmation process in the 107th Congress has been stalled by politics, as qualified nominees to the federal bench have been held in limbo. In this section, the Center provides an up-to-date list of judicial nominees yet to be confirmed by the Senate. Most of them are being denied a hearing in the Judiciary Committee."
- People for the American Way and its report, "Courting Disaster: How a Scalia-Thomas Supreme Court Would Endanger our Rights and Freedoms" PFAW has also published a report: "President Bush, the Senate, and the Federal Judiciary: Unprecedented Situation Calls for Unprecedented Solution" which attempts to "debunk accusations that Bush administration’s nominees are being treated unfairly by the Senate, and documents the unprecedented blockade waged by some Senate Republicans, many of whom now clamor for immediate votes on Bush administration judicial nominees, against highly qualified Clinton administration nominees."
- National Organization for Women's "Judicial Nominees Special Report: Our Courts at Risk"
According to the NOW Web site: "George W. Bush clearly holds the power to imprint his conservative agenda on the U.S. judicial system. To date, the Bush administration has sent 66 nominations to the Senate Judiciary Committee. The Senate has already confirmed 28 of them (22 trial level, and six appellate level). The Judiciary Committee has held 11 hearings on judicial nominees since July, while during the Clinton years the Republican-dominated committee held barely half a dozen hearings per year. These lower-court positions play a vital role in the judicial process because a vast majority of cases never make it to the Supreme Court. Cases that are decided by the Supreme Court face another threat. We find ourselves in the longest interval between Supreme Court vacancies in 178 years. When a position opens, Bush will surely attempt to fill it with someone from his stable of right-wing judicial ideologues. Considering that two out of three Supreme Court decisions in the last term were decided by 5-4 votes, all of our fundamental rights — reproductive rights, civil rights, lesbian rights, disability rights and so many other gains feminists have fought for in the past 35 years — could be at risk with the addition of just one new ultra-conservative Supreme Court justice. There is a ray of hope: With Democratic Sen. Patrick Leahy chairing the judiciary committee, we have the political opportunity to stop at least some of the most egregious nominations from going forward."
- Judicial Recess Appointments: A Survey of the Arguments -- An Addendum (December 2007)
- Judicial Recess Appointments: A Survey of the Arguments--Posted January 2004
- Precedent from the Confirmation Hearings of Ruth Bader Ginsburg for the Conduct of Judicial Nominees by Jay T. Jorgensen--July 31, 2003
- The Other Filibuster by Thomas Sowell--March 12, 2003
- Cato Policy Analysis no. 446, "How Constitutional Corruption has Led to Ideological Litmus Tests for Judicial Nominees," by Roger Pilon
- Debate: Of Senate Default and Judicial Nominations: Does the Constitution Require the Full Senate to Act?, Dean Doug Kmiec and Elliot Mincberg, June 7, 2002
- Speech by Vice President Dick Cheney to the Federalist Society's 2001 National Lawyers Convention
- Hot Topics: Conservative Judicial Activism
- U.S. Department of Justice, Office of Legal Policy: Statistics on Judicial Nominations
- U.S. Senate Judiciary Committee: Nominations
- "End the Judicial Blame Game" by Lloyd Cutler and Mickey Edwards, The Washington Post, March 13, 2002
- Debate: Resolved, The Senate Should Take Ideology into Account in the Judicial Confirmations Process, Ralph Neas and Roger Pilon, The Cato Institute, January 16, 2002
- "The Role of Ideology in Confirming Federal Court Judges" by Ronald D. Rotunda, The Georgetown Journal of Legal Ethics, Fall 2001
- Stephen B. Presser, Should Ideology of Judicial Nominees Matter?: Is the Senate's Current Reconsideration of the Confirmation Process Justified?, 6 Tex. Rev. L. & Politics 245 (2001).
Judicial Recess Appointments: A Survey of the Arguments -- An Addendum
Lawrence VanDyke December 20, 2007
On December 31, 2007 the Senate adjourned sine die, concluding its first session. In 2004, the Federalist Society released a paper by a group of lawyers surveying the arguments regarding the President’s power to make recess appointments to the federal judiciary. A new supplement to that paper discusses a further issue not discussed in the original paper: the President’s power to make recess appointments during a brief intersession recess. (An intersession recess is the break between each formal session of Congress, while an intrasession recess is a temporary adjournment within a session of Congress.)
Judicial Confirmations Debate Transcript Transcript of Judicial Confirmations debate on February 20, 2003, between Hon. C. Boyden Gray of Wilmer Cutler Pickering and Nan Aron of the Alliance for Justice.
Judicial Recess Appointments: A Survey of the Arguments
This paper considers the President’s power to make recess appointments to the federal judiciary. Part I details the long history of judicial recess appointments. Part II considers the arguments in favor of, and against, the constitutionality of such appointments. Part III discusses the mechanics of recess appointments. And Part IV considers the political advantages and disadvantages of such appointments.
Filibusters and the Constitution
Renowned former Senate historian Floyd Riddick once said that Senators are expected to "restrain themselves" and "not abuse the privilege of debate." Yet today, a partisan minority of Senators has launched unprecedented filibusters to block the confirmation of the President’s judicial nominees by preventing a bipartisan majority of Senators from even calling a vote on their nominations. This wrangling has constitutional dimensions, raising important questions about the Senate’s role in the judicial confirmation process under the Advise and Consent Clause.
Judges Wars - Transcript Transcipt of Judges Wars panel on September 9, 2003. Panelists included Prof. Ronald Rotunda of George Mason University School of law, Manuel Miranda, Counsel to Sentate Majority Leader Bill Frist, Jeffrey Berman of the Subcommitte on Administrative Oversight in the Courts and Chief Counsel to Senator Schumer, Elliot Mincberg, Vice President of People for the American Way, and Leonard Leo, Executive Vice President of the Federalist Society as the moderator.