The State of the Judicial Confirmation Process


The State of the Judicial Confirmation Process

April 30, 2002 9 min read
The Honorable Mitch McConnell

I thank The Heritage Foundation for inviting me here today to give my observations on the state of the judicial confirmation process.

Most of you are aware of the all-out effort to defeat Judge Charles Pickering. This effort, though, is just the most high-profile example of a plan which some on the left have hatched to prevent President Bush from appointing moderate-to-conservative judges to the federal bench.

Today, I will discuss how this plan has manifested itself in the systemic change in Judiciary Committee practices and procedures, and the effect this effort is having on the administration of justice at the federal level in terms of judicial vacancies.

Democrats' Strategy: Changing The Ground Rules

I am not big on conspiracy theories. But The New York Times reported last year that some Democrats discussed a strategy for systematically stopping the President's judicial nominees at an April 2001 retreat, which was attended by liberal law professors, such as Larry Tribe. More specifically, the Times reported that a topic at this retreat was changing the ground rules on confirming judges. Since then, we have seen changes in both the substantive and procedural standards by which the Judiciary Committee considers judicial nominees.

Changing the Substantive Standards

Litmus-Testing Judges
In the realm of substantive changes, the first thing we have seen is an effort to "litmus-test" judges, such as by blackballing nominees who are pro-life. Several weeks ago, I was pleased to see my friend Senator Joe Biden admonish groups like NARAL (the National Abortion and Reproductive Rights Action League) and NOW (the National Organization for Women) that seek to litmus-test judges.

Unfortunately, others in his caucus have come out and essentially said that the Judiciary Committee should institutionalize this practice. For example, after assuming control last year, the Democrats held two hearings on changing the standards for confirming judges and, more specifically, on using political ideology to screen judicial nominees.

There were veiled references to this practice by some Democrats during the Pickering nomination, such as that he, in his personal capacity, "has been in one position on these issues," meaning that he has been pro-life and has otherwise followed traditional Judeo-Christian principles in his private life, and that therefore he is unfit.

ABA Rating
Next, the Democrats have done an about-face on the importance of the American Bar Association rating. They criticized the President when he decided not to give the ABA a preliminary veto over nominees. They said the ABA rating was the "Gold Standard" by which to judge nominees. Now that several of the President's nominees, such as Judge Pickering, have received the ABA's highest rating, "Well Qualified," this standard no longer matters.

Majority Leader Tom Daschle has recently minted a new standard: that the nominee must have an "impeccable" past. (Presumably, this standard is in addition to requiring a Republican nominee to agree with the Democrats on their laundry list of ideological litmus tests.) Folks, I've got news for you, sainthood has never been a requirement for being on the federal bench.

Commitment to Disregard Precedent
Now, as I have understood our system of justice, we want lower court nominees to adhere to precedent. The Democrats purport to want this as well; note their argument against Judge Pickering in this respect. But after watching some of my Democrat colleagues, I think it is more precise to say they want nominees who will selectively follow precedent--the precedent they happen to like: Roe v. Wade , not Buckley v. Valeo .

For example, in one of the "confirmation process" hearings the Democrats held, one Senator appeared to question whether he could support any nominee who doesn't support campaign finance reform. Since most campaign finance reform is unconstitutional, this is essentially a position not to confirm any nominee who does not commit, under oath, to disregard Supreme Court precedent and violate First Amendment rights. This is perverse.

And at a confirmation hearing for a district court nominee, another Senator implied that he might have a hard time supporting a nominee who agreed with the Supreme Court's decision in the gay scoutmaster case, Boy Scouts of America v. Dale .

In our system of justice, lower court judges don't have the luxury of picking and choosing which precedents they are going to follow and which ones they are going to disobey. And it's therefore extremely unfair to put lower court nominees in an untenable position where they must commit only to follow precedent selectively, with Judiciary Committee Democrats doing the selecting.

Changing the Process

The Democrats have also sought to change not just the substantive standards by which we consider nominees, but our process for doing so. I will mention a couple of examples of this.

Circuit-Wide Hold-Up
There is a Senator who represents a state in my Circuit, the Sixth Circuit, who is unhappy that two Clinton nominees from his state were not confirmed by the Republican Senate. He has been holding up not just all Sixth Circuit nominees from his state, but all Sixth Circuit nominees, period--even nominees from states he does not represent.

Until now, we have not given a Senator from one state veto power over the nominees from several other states. Because it appears the Democrats have thus far followed this practice with respect to Sixth Circuit nominees, my Circuit is left with fully one-half of its seats vacant.

Demanding All Unpublished Opinions
Next, the Democrats have started asking some nominees for all their unpublished opinions. For a judge who has been on the bench for over a decade, we are talking about a voluminous amount of material, so regarding this is quite a burden on the nominee. Furthermore, the value of having these opinions is questionable because they don't count as precedent.

Republicans never asked this of a nominee unless they had a specific reason for doing so. They did not go on fishing expeditions. If we are going to require this of nominees, this is a change that burdens the nominee, slows down the process, and encourages "gotcha" politics.

I had hoped that this practice was going to be confined to Judge Pickering, but this unprecedented request is fast becoming precedent: the Democrats have now asked this of others, such as Judge Brooks Smith of Pennsylvania, who, like Pickering, has been a district court judge for over a decade. It's the use of tactics like these that gives people pause.

Meltdown in the Process

If the Democrats continue to litmus-test judges and pursue the other changes I have mentioned, there will be a breakdown in the confirmation process. Republicans confirmed nominees, like Janet Reno, who had personal views that differed from the law. If they allow NARAL and NOW to blackball all pro-lifers, it will be, as Joe Biden said several weeks ago, "a cold day in hell" before there will be any new abortion-rights judges when the Republican Party regains control of the Senate.

Unfortunately, the process is already breaking down. The current overall vacancy rate is over 11 percent, and for the circuit courts it is nearing 20 percent. Indeed, as I noted, in the Sixth Circuit, the vacancy rate is 50 percent. Despite these alarming statistics, the Senate is still moving woefully slowly in confirming judges.

I had the Congressional Research Service look into the current pace of confirmations, and its research shows that this Senate's treatment of President Bush's judicial nominees compares quite poorly, at all stages of the confirmation process, with the treatment that prior Congresses afforded the judicial nominees of President Bush's four predecessors during their first Congress. And this Senate has done a particularly poor job with respect to confirming appellate court nominees, which is what I'm going to talk about.

Circuit Court Nominees

  • From Jimmy Carter through William Clinton, over 90 percent of circuit court nominees received a Judiciary Committee hearing during a President's first Congress. (See Chart 1.)
  • By contrast, only about one-third of President Bush's circuit court nominees (37.9 percent) have received a committee hearing. (See Chart 1.)
  • With respect to receiving a Judiciary Committee vote, from Jimmy Carter through William Clinton, at least 86 percent of circuit court nominees received a Judiciary Committee vote. (See Chart 2.)
  • By contrast only about one-third (34.5 percent) of President Bush's nominees have received a vote in the Judiciary Committee. (See Chart 2.)
  • And with respect to Senate floor votes, at least 86 percent of circuit court nominees from the Administrations of Jimmy Carter through William Clinton got a vote by the full Senate. (See Chart 3.)
  • By contrast, only about one-fourth (27.6 percent) of President Bush's circuit court nominees have received a vote by the full Senate. (See Chart 3.)





It's pretty clear that we are not doing a very good job on filling circuit court vacancies, and we need to do a better job in the confirmation process in general. That should start with returning to traditional standards and practices in the confirmation process.

I fear that if we don't--if we don't resist this game of victory at any cost--the damage will be greater than those who perpetrate it can imagine. So I'm hopeful the Democrats will listen to my friend Senator Biden and step back from the brink.

The Honorable Mitch McConnell, a Republican, represents Kentucky in the U.S. Senate.


The Honorable Mitch McConnell