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Judge Kavanaugh on the Confirmation Process

Those who have been through the process rarely have nice things to say about it.

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.

The full lecture was published in the Case Western Reserve Law Review. A video of the lecture (and other Canary lectures) is available here.

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  • phattyboombatty||

    We probably need a constitutional amendment on this issue, because any rules created by the Senate can always be changed. My suggestion is to amend the advise and consent portions of the constitution to add that any nominee who is not rejected by the Senate within four months of the nomination is automatically confirmed.

  • MatthewSlyfield||

    You'd have to be clear about whether rejection requires a floor vote or if rejection by the judiciary committee is enough to count as rejection.

  • phattyboombatty||

    I don't think it's necessary to get that far into the weeds, but I guess it would be more foolproof if the amendment specified that a rejection must be by a majority of the members of the Senate.

  • bernard11||

    I don't think that works. There are too many procedural roadblocks to a vote that can be thrown up to get a bad nominee confirmed by default. Besides, I think Senators ought to vote, damn it. That's their job, not skulking around and playing games and spending their time fund-raising and going on TV. That's how you get accountability.

    Want so-and-so confirmed? Then stand up and vote yea.

    My preferred alternative is that the Senate can conduct no business unless they have voted within six months - maybe less for district and circuit court judges - and that after six months any Senator can demand a vote which must then be held within (fill in a small number) days.

  • ||

    My suggestion is to amend the advise and consent portions of the constitution to add that any nominee who is not rejected by the Senate within four months of the nomination is automatically confirmed.

    That is terrible. The better version is any nominee who is not rejected or approved by vote is automatically rejected.

  • TwelveInchPianist||

    Meh. The number of federal judges, and the number of seats on the supreme court, seems likely the increase seven or eight fold the next few times the presidency and the senate change hands, so even if vacancies occur, there will still be plenty of judges to do the judging.

  • Brett Bellmore||

    Perhaps we should arrange to have a pool of pre-approved judicial candidates, who can be drawn upon to fill vacancies as they occur. I'm not sure this would actually comport with the Constitution, however.

  • Drewski||

    I don't think fairness to nominees as individuals is an appropriate consideration. I have a funny notion that public service is something you so because you want America to succeed and flourish. Perhaps it comes from serving beside people who died in a war. It wasn't fair to them as individuals, and nobody expected it to be, but we all did it anyway.

    But I agree otherwise, except to note that any rules the Senate makes will be dissolved at the first sign that the majority's favored lap dog might not be confirmed, or the minority's might be. Until we get control of our legislature and fill it with less despicably craven fools, it's pointless to hope they'll act in good faith.

  • Rev. Arthur L. Kirkland||

    My personal view is that the Senate should require a vote on all judicial nominees within six months of nomination.

    Are we to conclude that Judge Kavanaugh wanted to express this opinion in the context of the Garland nomination, but that his handlers at the Federalist Society forbade it?

  • David Nieporent||

    We are not to conclude that if we are intelligent.

  • Rev. Arthur L. Kirkland||

    You still claiming to be a libertarian?

  • ||

    You still claiming to be sane?

  • FlameCCT||

    Are we to conclude that RAK has trouble comprehending the English language? Seriously, is it that hard to tell the difference between 2013 and 2016?

  • Rev. Arthur L. Kirkland||

    I am aware of the temporal points, you half-educated bigot. If Justice Kavanaugh did not object publicly to the treatment of Judge Garland it is reasonable to conclude partisanship trumped his ostensible principles.

  • Smooth Like a Rhapsody||

    So your stance is that, lest he risk you calling him a Fed Soc hack, he should say (or have said) that the Senate should have had a vote 6 weeks before a Presidential election.

  • ||

    "If Justice Kavanaugh did not object publicly to the treatment of Judge Garland it is reasonable to conclude partisanship trumped his ostensible principles."

    Heavens no. Using that logic every potential future candidate for a judgeship would be obligated to make a public statement on the handling of every nomination. For example, I should be able to look up Garland's public statements about Judge Bork and if there are none, I make inferences.

    I would not expect the mainstream media to cover all those ritual public statements, so we would have to rely on Facebook/Twitter to serve that function of democracy and we would have to disable the ability of Facebook/Twitter users to alter or delete their postings after the fact.

    Oh my aching head.

  • BigHands||

    "A nominee's confirmation may not happen for up to three years. This leaves seats vacant too long ... and is unfair to the individual nominees."

    Who would've ever thought that a judicial nomination would be political in nature? There is, after all, only one way to view and interpret the law.

    Of course the nominee could always withdraw from consideration, opening up the process to someone more acceptable. Unfair to the nominee? Maybe. And maybe a long protracted confirmation battle is just evidence of a deeply felt split in evaluating a candidate's judicial temperament and philosophy.

  • dwb68||

    Politicians have been packing courts for eons. FDR's attempts to pack the courts are famous, but I am sure a good historian could dig up other, earlier, examples from the mid 1800s. policy and results oriented reasoning inevitably results in hyper partisan confirmation battles.

    What is surprising to me is not the hyper partisan nature of confirmation battles. Its more surprising that some aren't. I consider it part of the process. Nothing worthwhile is easy or free - and judges get a lifetime appointment.

  • apedad||

    So we're saying it's OK for federal judges to criticize Congress (or perhaps the President), but not OK when Senators/Reps or the President criticizes a judge?

    Seems rather inconsistent to me; they're equal branches so I'm not sure why we're giving leeway to Judge Kavanaugh here.

  • swood1000||

    but not OK when Senators/Reps or the President criticizes a judge?

    It's only the ad hominem criticisms of judges that are not OK.

  • Stephen Lathrop||

    Wait a minute. Is that humor? If you want to talk about deficiencies in a judge, what other kind of criticisms could there be? Ad feminam, I suppose.

    But focusing on the style of criticism seems to miss the point—which is the impropriety of, for instance, a President, using prestige and influence that is a gift of the people, to undermine their support for the judicial process.

  • swood1000||

    Wait a minute. Is that humor? If you want to talk about deficiencies in a judge, what other kind of criticisms could there be?

    Ad hominem: the judge is biased

    Not ad hominem: the judge's legal analysis is flawed in the following way

  • Intelligent Mr Toad||

    Has Ruth Bader Ginsburg ever said anything about the confirmation process? How about Elena Kagan?

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