May 2013: The Broken Judicial Confirmation Process

Washington Watch | May 2013
By Bruce Moyer

Comparisons of history help to underscore how dysfunctional the judicial confirmation process is today.

Let us begin by shining the spotlight on the confirmation of Robert Bacharach of Oklahoma to the Tenth Circuit Court of Appeals, which occurred earlier this year. It took the Senate more than a year – 399 days to be exact – to approve the nomination. Yet Bacharach, formerly a magistrate judge, had the support of both his homestate Republican senators and ultimately won Senate confirmation by a 93-0 vote. (Bacharach is an active member of the Federal Bar Association and has served as the Tenth Circuit Vice President since 2007.)

Similarly, it took the Senate 387 days to confirm William Kayatta of Maine to the First Circuit Court of Appeals, by a vote of 88-12. Both Bacharach’s and Kayatta’s nominations had twice cleared the Judiciary Committee in prompt, noncontroversial fashion during 112th Congress and the current Congress.

Long delays in filling judicial vacancies are a relatively new phenomenon, as Brookings Institution scholar Russell Wheeler observes in a recent essay in The Atlantic. He points to Abraham Lincoln’s record as an example. It took Lincoln less than 10 days on average to fill a judicial vacancy, Wheeler notes. Yet during his presidency Lincoln appointed 27 men to the federal bench, three times more than his predecessor James Buchanan had named. Lincoln faced the daunting and unprecedented task to fill rapidly growing numbers of district court vacancies, largely in the border or southern states, caused by the resignation of disaffected disgruntled judges. He was also aided by the ruling majority that Republicans held in the Senate.

Even, sixty years later, it took about the same amount of time – about 10 days – for Warren G. Harding to fill vacancies on the federal bench, with the “advice and consent” of the Senate. Wheeler notes that by the time of the Truman Administration, the duration of time between nomination and confirmation had grown, but still averaged less than 40 days. It had not even grown to 60 days during the Reagan Administration.

Over the last several decades, however, wait times between nomination and confirmation have expanded significantly. Wait times grew to 101 days on average for George H.W. Bush’s district judges and 89 for his appellate judges; 93 and 127 days, respectively, under Clinton; and 155 and 283 under George W. Bush. Under Obama, district nominees waited a record 223 days, appellate nominees less than they had under Bush II, at 240 days.

When vacancies arise, they place added pressure on the existing cadre of current judges to dispense justice promptly. Caseloads do not ebb as vacancies arise. They only increase as an added responsibility for the remaining judges.

That has been felt most acutely in the D. C. Circuit, where four vacancies now exist, the highest percentage of vacancies among all the appeals courts. The appeals court is widely considered the second most-powerful court in the country because of its near-exclusive jurisdiction over important national security and administrative law cases.

The longest vacancy on the D.C. Circuit came about when Chief Justice John G. Roberts Jr. was elevated to the Supreme Court nearly eight years ago. Attempts to fill the vacancy during George W. Bush’s second term and Barack Obama’s term have remained bedeviled. On March 22, President Obama withdrew Caitlin J. Halligan from consideration after Republican senators successfully filibustered her nomination for a second time. Halligan has been in limbo more than 700 days. Opponents characterized her as an activist who might not share their view of the Second Amendment.

Clearly the historical record speaks for itself. The Senate, under both parties, has been increasingly slow, even derelict, in exercising its Constitutional responsibility to advise and consent in the appointment of qualified men and women to the federal courts.

Bruce Moyer is government relations counsel for the FBA. © 2013 Bruce Moyer. All rights reserved.

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