The Judiciary’s Design
America’s founders designed a system of government with a defined role for each of the three branches: legislative, executive, and judicial. The system works best when each branch operates as it was designed.
Judges do not make the law like the legislative branch, or enforce the law like the executive branch. Instead, judges interpret the law and apply it to the facts of each individual case. They are supposed to do so impartially, which means determining what those who enacted statutes or ratified the Constitution intended them to mean. Judges must not rely instead on their personal views or purposes; they may not twist the law or change what it means to make cases come out as the judge wants.
Since about the 1930s, however, more and more people want to abandon this design for the judiciary. They want judges to be much more powerful, able to change what statutes or the Constitution mean so that their decisions serve particular political interests.
The conflict over judicial appointments is really about whether the judiciary should operate as it was designed, with a defined and modest role for judges, or operate in a new way, with an almost unlimited and political role for judges.
The Constitution gives the power to nominate judges to the president but requires the Senate’s consent for the president to appoint someone he has nominated. For two centuries, the process for appointing federal judges worked smoothly, with very little conflict. From 1789 to 2000, 97% of the judges approved by the Senate had no opposition at all. The growing conflict over the power and proper role of judges, however, has made the process for appointing them increasingly difficult. Today, conflict over nominations to all three levels of the federal judiciary has become commonplace.
Following and evaluating the judicial appointment process requires reliable, accurate, and current information. The Judicial Appointment Tracker provides current data on six components of the process: judicial vacancies, nominations, hearings, confirmations, votes to end debate, and roll call votes. The Judicial Appointment Tracker will be regularly updated to provide the current data in each category for President Biden and comparison data at the same point under previous presidents. Sources for the data used in the Judicial Appointment Tracker include the Administrative Office of the U.S. Courts, Federal Judicial Center, Senate Judiciary Committee, and Congress.gov.
- Article III of the U.S. Constitution created the U.S. Supreme Court and gave Congress power to create “inferior” courts; judges on these “Article III” courts do not have specific terms, serving during “good behavior.”[REF]
- Congress has created three Article III courts, with judges distributed around the country: the U.S. District Court (663 seats), U.S. Court of Appeals (179 seats), and U.S. Court of International Trade (9 seats).
- The Administrative Office of the U.S. Courts designates some vacancies as “judicial emergencies” because the positions have been open so long and the vacancies increase the caseload of other judges. The current list of judicial emergency vacancies can be found here.
- Presidents often consult with Senators before choosing judicial nominees who would serve in those states.
- The Constitution allows the President to make temporary appointments without Senate to fill vacancies “that happen during the recess of the Senate.”[REF]
- Since 1868, nominations have been referred to “appropriate committee” in the Senate for evaluation; Article III judicial nominations go to the Judiciary Committee and others go to the committee with jurisdiction over the subject matter of the position.
- Since 1917, the Judiciary Committee chairman has asked for the views of the Senators in whose states a judicial nominee would serve and those views can influence whether a hearing occurs on that nominee.[REF]
- Before a hearing, the FBI conducts a background check and the nominee completes a Judiciary Committee questionnaire; after a hearing, the committee meets to debate and vote on sending the nomination to the full Senate.
- The percentage used above is of a president’s nominees.
- The Senate must give its consent before the President can appoint someone he has nominated.
- Once approved by a committee, nominations are listed on the Senate’s “executive calendar”[REF] and the Senate must be in “executive session” rather than “legislative session” to consider and vote on nominations.
- The percentage used above is of total judiciary seats.
- The Senate must end debate on a nomination before voting on whether to approve it.
- Debate can end informally, by all Senators agreeing to schedule a final confirmation vote.
- Since 1917, Senate rules have provided that, if Senators object to ending debate informally, debate can end formally by adopting a motion to “invoke” cloture.[REF] A filibuster occurs when a cloture motion fails, preventing a final confirmation vote.
- From 1917 to 1949, invoking cloture on a nomination required unanimous consent; from 1949 to 1975, two thirds of Senators “chosen and sworn”; from 1975 to 2013, three-fifths of Senators “chosen and sworn”; and since November 2013, the same simple majority as confirmation.
- If cloture is invoked, Senate rules allow up to 30 additional hours of debate.
- The percentage used above is of confirmations.
Roll Call Votes
- The Senate can confirm nominations quickly by unanimous consent or voice vote, which takes less than one minute and does not require the presence of all Senators.
- If some Senators object, the Senate can also confirm nominations slowly by a roll call vote, which takes an average of 35 minutes and requires the presence of all Senators.
- The percentage used above is of confirmations.
Confirmed with >25% Opposition
- From 1789 to 1980, more than 97 percent of the judges confirmed to the U.S. District Court, U.S. Court of Appeals, and U.S. Supreme Court had no opposition at all.
- The best measure of opposition to a judicial nominee is the number of votes against confirmation as a percentage of the total votes cast.
- This category refers to the number and percentage of each president's confirmed nominees who received more than 25 percent opposition in the final Senate confirmation vote.