The Volokh Conspiracy

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Volokh Conspiracy

Of Biden, Bush, and the History of Judicial Confirmation Fights

Imagine how things would be different had a 2002 Bush proposal to deescalate judicial nominations been adopted.

|The Volokh Conspiracy |

There is no question that judicial confirmations have become more contentious over the past thirty years. Things were relatively peaceful from the mid-1970s until the mid-1980s. President Carter had no Supreme Court nominations, but saw a record number of lower court nominees confirmed, including one Stephen Breyer during 1980s lame-duck session.

The Reagan Administration sought to counter the influence of Carter's nominees (and the perceived progressive tilt of the federal judiciary generally) by emphasizing the judicial philosophy of prospective nominees. This led to the circuit nominations of folks like Antonin Scalia, Robert Bork, Frank Easterbrook, Douglas Ginsburg, Stephen Williams, J. Harvie Wilkinson, and Ken Starr, among others.

In 1985, some Senate Democrats began strategizing how to stall or block Reagan's judicial nominees, but they were wary of opposing Reagan's nominees on ideological grounds. "You get on awfully thin ground rejecting [judicial] nominees on an ideological basis," commented Senator Paul Simon  in the Washington Post (11/12/1985). Thus they settled on a strategy of more careful scrutiny of nominees' records and, once they took the Senate in 1987, delaying confirmations.

In 1992, then-Senator Joe Biden suggested the Senate should not consider Supreme Court nominees once the "political season" began, particularly if the White House and Senate were in opposite hands. This was already his practice with regard to key circuit court seats (e.g. Hope & Rymer in 1988; Roberts, BeVier & Boyle in 1991-92), and he wanted it to be the rule for the Supreme Court too. Senate Republicans returned the favor in 2000, holding up some of Clinton's nominees, including one Elena Kagan.

In May 2001, President George W. Bush put forward an impressive slate of circuit court nominees. The list included the likes of John Roberts, Miguel Estrada, and Jeff Sutton. It also included Roger Gregory, who Bill Clinton had recess nominated to the Fourth Circuit after Senate Republicans blocked him, and Barrington Parker for the Second Circuit, as a gesture to New York's Senate delegation. This was the most significant effort to de-escalate judicial confirmation fights of the past 35 years, but it did not bear fruit.

Hopes for rapid confirmations of Bush's nominees dimmed once control of the Senate flipped in June 2001 when Senator Jeffords switched parties. Boosted by Senator Schumer's call for explicit evaluation of judicial ideology, Senate Democrats slow-walked Bush's nominees, particularly those deemed too conservative.

Republicans sought to make the blockade of judicial nominations into an election issue in 2002. President Bush aided this effort by giving speeches in key battleground states. Shortly before the election, on October 30, he also gave an address on judicial confirmations in which he made the case against obstruction of judicial nominees.

We must have an evenhanded, predictable procedure from the day a vacancy is announced to the day a new judge is sworn in. This procedure should apply now and in the future, no matter who lives in this house or who controls the Senate. We must return fairness and dignity to the judicial confirmation process.

In this speech, Bush proposed a set of principles for judicial nominations that would guide the conduct of all three branches to ensure the orderly nomination and confirmation of federal judges.

First, I call on Federal judges on the courts of appeals and district courts to notify the President of their intention to retire at least a year in advance, whenever this is possible. Because the nomination and confirmation of a Federal judge is a lengthy process under the best of circumstances, judges who retire without advance notice can unintentionally create a judicial vacancy that can last for many months. The request for one year advance notice builds on existing policy of the judiciary and will help us work toward a system in which a new Federal judge is ready to take the bench on a day the sitting judge retires. That's the goal.

Second, I propose that Presidents submit a nomination to the Senate within 180 days of receiving notice of a Federal court vacancy or intended retirement. In other words, we have a responsibility as well to make sure the judiciary is sound and whole. This will speed up the sometimes time-consuming process of obtaining recommendations and evaluations from home-State Senators and Representatives and Governors and bar leaders, while leaving ample time for Presidents to vet and choose nominees of the highest quality.

Third, I call on the Senate Judiciary— Senate Judiciary Committee to commit to holding a hearing within 90 days of receiving a nomination. A strict deadline is the best way to ensure that judicial nominees are promptly and fairly considered, and 90 days is more than enough time for the committee to conduct necessary research before holding a hearing. That's plenty of time.

Finally, I call on the full Senate to commit to an up-or-down floor vote on each nominee no later than 180 days after the nomination is submitted. This is a very generous period of time that will allow all the Senators to evaluate nominees and have their votes counted.

The third and fourth principles could have been embodied in the Senate rules, much like the filibuster, to protect against opportunistic behavior by Senate majorities. Some Senate Democrats on the Judiciary Committee had endorsed similar principles in the late 1990s, even proposing legislative language, but they had no interest in this approach now that the show was on the other foot.

President Bush's proposal was never adopted. Senate Republicans retook the Senate, and Senate Democrats responded with the first-ever filibusters of circuit court nominees. Prior to 2003, there had been no meaningful history of cloture votes, let alone filibusters, of judicial nominees. Five of Bush's circuit nominees were ultimately blocked this way (despite the Gang of 14 deal), and Senate Republicans returned the favor in 2009 (while also offering to eliminate judicial filibusters for both sides). After Senate Republicans used the filibuster to block five of Obama's appellate nominees, Senator Reid invoked the nuclear option. Republicans nuked the filibuster for Supreme Court nominees in 2016, and the rest is history.

Given this history, it is interesting to think how things might have been different had President Bush's 2002 proposal been adopted by the Senate. Among other things, Miguel Estrada would have been confirmed, and there would be far fewer judicial emergencies on federal district courts.

Note that had such rules been in place, the Senate would have considered President Obama's nomination of Merrick Garland to the Supreme Court, and he would likely have been confirmed. By the same token, it's unlikely the Senate would have rushed to confirm Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg under a presumptive schedule that allowed for more time. But Bush's proposal, like his effort to de-escalate the judicial confirmation fights by re-nominating a blocked Clinton nominee (even though his party had Senate control), was rebuffed. And so we descended further in the downward spiral of judicial confirmations.