July 2012: The Lingo of Judicial Vacancies and Confirmations

Washington Watch | July 2012
By Bruce Moyer

Short of a miracle, there will be more vacancies on the federal bench at the end of Barack Obama's term as president than there were at the start. In 2008, when President Obama assumed office, there were 55 district and circuit court vacancies. When this column went to press, there were 74 vacancies on the federal bench.

Over the next four months leading up to the November elections, the pace of judicial confirmations in the Senate could slow down even more. The Thurmond Rule could kick in. Some Republican senators may delay returning their blue slips. The path of regular order in the Senate confirmation process could become even more jumbled. Senate Majority Leader Harry Reid (D-Nev.) may have no choice but to invoke cloture on some nominees. Meanwhile, judicial emergencies could increase. Hold it, stop reading. What the heck do all these terms— Thurmond Rule, blue slips, cloture, judicial emergencies—mean?

Dear reader, here's a primer to explain these terms. Even if you don't intend to become an inside-the-Washington-beltway legislative expert, knowing these terms will permit you to at least sound more informed the next time the cocktail conversation shifts to Washington and why it seems so little gets accomplished, especially when it comes to judicial nominations.

Thurmond rule: This is an informal and unwritten approach in the Senate that refers to how aggressively the Senate will proceed to move judicial confirmations in the last months of a presidency. It originated in June 1968, when the late Sen. Strom Thurmond(R-S.C.) chaired the Senate Judiciary Committee and opposed President Lyndon Johnson's nomination of Justice Abe Fortas as chief justice of the Supreme Court. Thurmond decreed that no lifetime judicial appointments would move in the last six months or so of a lame-duck presidency. Since then, the Thurmond rule has been inconsistently applied, and some nominees, particularly nominees for the district court, have been confirmed as late as October, just weeks before the presidential election. Nonetheless, expect to hear the Thurmond rule increasingly invoked by some Republicans in the coming months.

Blue slip: Senatorial courtesy plays a big role in how the Senate conducts its business, and the blue slip reflects that custom. The blue slip is a blue-colored piece of paper returned by a senators from the nominee's home state. Unless blue slips are returned by both senators, the Senate typically refuses to proceed with the consideration of a judicial nominee. Over the years, the blue slip has evolved into a tool used by senators to delay—and often prevent—the confirmation of nominees they find objectionable.

Regular order: This term refers to the strict process under a legislature's rules by which it does business in a rigorous manner, avoiding shortcuts and providing fairness to both sides. For federal judicial nominations, regular order involves the Senate practice of giving nominees an ample hearing, the opportunity for debate and consideration of the nominee within the Judiciary Committee, and, if approved, an up-or-down vote on the Senate floor. Regular order also refers to the order and timing of the consideration of judicial candidates, by which candidates nominated earlier have precedence over later-named ones.

Cloture: In the Senate, unlimited debate is generally permitted, giving rise to filibusters that can unceasingly extend debate and avoid a confirmation vote on a judicial nominee. Cloture is the procedural device used to halt debate and it requires a "supermajority" of 60 votes and the commitment of up to 30 hours of debate on the cloture motion. Because the pursuit of cloture can potentially tie the Senate calendar up in knots because of the the 30-hour requirement, the mere threat of a filibuster has become the most frequently used procedural weapon used to delay final votes on judicial nominees.

Judicial emergency: The term, established by the federal judiciary, refers to a vacancy in a federal district court or circuit court that has existed for a significant period of time and arises in a court that has a large caseload. Technical criteria fashioned by the Judicial Conference apply to the necessary length of the vacancy and the number of necessary weighted filings that reflect a heavy caseload. This term is different from the state of judicial emergency that exists when declared by the chief judge of a district court to temporarily suspend the time limit set by federal law for bringing criminal defendants to trial. As of late May, there were 32 judicial emergencies at the district court level and seven judicial emergencies at the circuit court level brought about by vacancies. This means that half the nation's population—160 million people—were living in jurisdictions that have been declared to be undergoing a "judicial emergency" by the federal judiciary.

Bruce Moyer is government relations counsel for the FBA. © 2012 Bruce Moyer. All rights reserved.

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