The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In October 2013, Judge Brett Kavanaugh delivered the Sumner Canary Memorial Lecture at the Case Western Reserve University School of Law. In these remarks, which focused on the distinct nature and role of the D.C. Circuit and touched on broader questions of administrative law, Judge Kavanaugh reflected on the judicial confirmation process. Here's a taste:
I think something is wrong in not just the confirmation process for our court but for lower courts more generally. A nominee's confirmation may not happen for up to three years. This leaves seats vacant too long, overburdens judges on certain courts, and is unfair to the individual nominees. Moreover, the delays have systemic effects and deter talented people from wanting to become judges. We want to design a system, I think, that encourages good people to want to be judges. During the Clinton and George W. Bush Administrations, then–Chief Justice William Rehnquist discussed the delays3 and their effect of discouraging private practice attorneys in particular from wanting to be federal judges.
There is a better way to do this, I think. As Presidents Clinton and Bush have suggested, the executive branch and the Senate should work together on ground rules that would apply regardless of the President's party or who controls the Senate. Thus, no matter whether the President is Democratic or Republican, no matter whether the Senate is controlled by Democrats or by Republicans, you have the same ground rules for how nominations will be considered. There are four permutations, and the rules should be the same for any of the four.
My personal view is that the Senate should require a vote on all judicial nominees within six months of nomination. That would provide a set ground rule for how the Senate would consider the nominees. Now, it is not my place to say whether that should be a majority vote or what the Senate calls—in Washington speak—a cloture vote that requires sixty votes for something to happen. But either way, the Senate in my view should establish a strict time limit so that the process will come to a final determination within a set amount of time.
Now, changing the ground rules in the middle of a presidency is very hard. Why? Because everyone is affected by the current permutation. But that is always going to be the case, and I don't think after the Clinton Administration, the Bush Administration, or now the Obama Administration, throwing up our hands presidency after presidency makes much sense. But the problem, although it is admittedly not the highest-profile problem in the United States, is an important problem for the administration of justice. We should not just continue to have this problem and continue to live with it. Certainly, there is no reason the problem couldn't be squared away, for example, by 2017, even if it means adopting rules now that wouldn't take effect until the next presidency.
So I think all of us who care about the quality of the federal bench and the administration of justice—and that certainly includes all of us in this room—should do what we can to help promote the idea that the Senate should adopt ground rules for lower court nominations that are firmly established, are consistently applied, fill the courts, are fair to the nominees, and attract really good people to be judges.