The Confirmation Process for Lower Federal Court Appointments in the Clinton and W. Bush Administrations: A Comparative Analysis

Matthew R. Batzel

Submitted to the Department of Government, Franklin and Marshall College Advisor: D. Grier Stephenson, Jr.

Submitted: April 29, 2005 Defended: May 4, 2005

Expected Graduation Date: May 15, 2005

Table of Contents

Introduction 4 Overview of paper 5 Previous Research 6 Research methods 7 Background- Constitutional Convention 8 U.S. District Courts 10 U.S. Courts of Appeals 10 Process 10 History of Nominations 12 Clinton’s years with United Government 18 Structure 18 Process 18 Results 19 District Court Appointees 20 Appeals Court Appointees 21 Extreme Judges? 21 Analysis 22 Clinton’s years with Divided Government 22 Structure 23 Process 23 Results 26 District Court Appointees 26 Appeals Court Appointees 29 Sampling of Judicial Nominees 30 The Effect of Presidential Politics 32 Politics 32 Fourth Circuit 33 Blocking nominees 33 Confirmation delay 34 Scrutinizing women and minorities? 35 Clinton effect 36 Use of Blue Slip System 36 Ronnie White 37 Congressional Record 38 Unprecedented? 41 Analysis 42 Bush’s years with Divided Government 43 Structure 43 Process 45 Departure from Status Quo 45 Results 47 District Court Appointees 48 Appeals Court Appointees 49

2 Sampling of Judicial Nominees 50 Politics 52 Unprecedented? 55 Congressional Record 56 Analysis 57 Bush’s years with United Government 58 Structure and Process 58 Results 58 Sampling of Judicial Nominees 59 Politics 60 Unprecedented? 62 The Filibuster 64 Congressional Record 66 Analysis 68 Explanation of contentious judicial debate 69 Conclusion 71 Future 72 Bibliography 74 Endnotes 76

3

Introduction

Judicial appointments help presidents leave their mark on the nation. Presidents make lifetime appointments often of individuals who they hope will represent their values long after their presidencies are over. While most of the research on judicial appointment analyzes only Supreme Court nominations, there are many lower federal judicial appointments that likely have a large impact. During a four-year term a President typically appoints well over 100 lower federal judicial appointments, but might only appoint a few (or no) Supreme Court Justices. President Clinton appointed two Supreme

Court Justices, while President Bush has not appointed any. Vacancies in the District

Courts and Circuit Courts of Appeals may allow the President to make hundreds of lifetime appointments. Clinton appointed 386 lower federal judicial appointments and

Bush (43) appointed 168. The sheer number of lifetime appointments signifies their importance. Thus, the judges are part of presidential legacies.

But it is not just the President who has an impact on the lower federal judicial appointments. Senators see their role of ‘advice and consent’ as important to the balance of powers. The confirmation process is one that is often politicized and vividly shows the division of partisan politics. A portion of a speech from a U.S. Senator captures the problem. “Free and full debate over judicial nominations is healthy. The Constitution is clear that only individuals acceptable to both the President and the Senate should be confirmed. The President and the Senate do not always agree. But we should resolve these disagreements by voting on these nominees--yes or no.”i This quotation could have come from either a Democrat during the Clinton presidency or a Republican at the time of the Bush(43) presidency.

4 It is common to hear accusations from both parties that the other side is drastically changing the judicial appointment process. Democrats criticize the way the Republican majority handled President William J. Clinton’s nominations. Similarly, Republicans have critiqued the way the Democratic senatorial minority has affected President George

W. Bush’s judicial nominations. Each party has accused the other of causing gridlock, ie., blocking or delaying the confirmation of the President’s nominees. So has the judicial confirmation process drastically changed during the past two administrations? If so, then why has it changed so much and what is the nature of the change? This paper will explore these questions by looking closely at the process during both the Clinton and Bush (43) years.

Overview of paper

Before looking at the specifics of either administration I will set the stage for the discussion of judicial nominations. This includes previous research on this subject and how it influences this particular study, the different research methods that were used, the background of judicial nominations, the process of how nominations are made and then how the Senate traditionally has handled them, and the history of nominations under different administrations.

I will compare the process under Clinton and Bush. This entails examining their presidencies in different periods, with divided and united government. Clinton’s first two years were with a united government. In other words, the Democrats had a majority in both houses of Congress, during the 103rd Congress. Clinton’s second period was with divided government. In 1994, the Republicans took over control of both houses of

Congress and held the majority in the Senate until 2001. So Clinton’s second period is

5 from 1996-2000, the 104th (1995-1996), 105th (1997-1998), and 106th (1999-2000)

Congresses. For Bush’s presidency, in effect his first two years were with divided government because no judicial nominations were acted upon before Vermont Sen. James

M. Jeffords left the Republican Party and gave the Democrats the slim majority in the

Senate by 1. So Bush’s first period will be the 107th Congress (2001-2002). Then Bush had united government in the second two years of his first term, the 108th Congress (2003-

2004).

Within each period I will look at several aspects. First is the structure within the president’s administration and the individuals who were working on judicial nominations.

The second consideration is the process those officials used to bring about a nomination.

The results and confirmation process will be analyzed as well as the unprecedented changes in each situation. Then conclusions can be drawn from each period.

Previous Research

Many authors have looked at the judicial confirmation process over the years.

David C. Nixon and David L. Goss studied the length of time it takes to fill a judicial vacancy to demonstrate conflict between the president and the Senate.ii They found that

“institutional and partisan conflict between the Senate and the White House drive the confirmation process for the federal appeals courts, but delay tactics employed by the

Senate are only partially strategic.”iii

Nolan McCarty and Rose Razaghian studied executive branch nominations from

1885-1996 and made the case that while some nominations are confirmed at high rates, the length of time that confirmation requires varies greatly.iv Even though they did not

6 focus on judicial appointments, they found in general that Senate procedures make long delays possible through partisan and ideological proponents’ actions.v

Garland Allison demonstrated that judicial confirmation rates decrease and delay increase later in a president’s term.vi Also, there is an increase in confirmation delay for appellate court judges as opposed to district court judges due to the circuit courts’ heightened importance in policy making. The lower federal courts are important in policy making because the Supreme Court handles such a tiny number of cases and these lower courts very often are the final place cases are heard. Finally, Allison found that scrutiny will more likely be greater in times of divided government, but may exist regardless of partisanship because of institutional rivalry.vii Additionally, Hartley and Holmes argued that increased senatorial scrutiny of lower federal court nominations has been long in the making even before Clinton.viii They noticed that changes instituted by President Carter increased the tensions between the president and Senate.

Sheldon Goldman and Elliot Slotnick have done a significant amount of valuable research on each period of both Clinton and Bush’s presidencies. Focusing on how president’s appointments were confirmed, their research provides the most extensive basis for my study. They have compared each time period to the past five presidents:

Carter, Reagan, Bush (41), Clinton, and Bush (43). But their analysis did not directly compare Clinton and Bush (43)’s terms, which this study will do. So I will build upon much of their research.

Research methods

My research began with several books and articles that have focused on the judicial confirmation process of lower federal courts. In particular, for all of President

7 Clinton’s presidency and the first half of President Bush’s presidency, Sheldon

Goldman’s and Eliot Slotnick’s articles provided a foundation from which to work. For the second half of President Bush’s term I created my own base from information about the candidates from Department of Justice’s webpage on judicial nominations.ix I contacted a member of the Senate Judiciary Committee’s staff for background, but was told that they were not allowed to do interviews due to the sensitive nature of this issue.

As a substitute, I used Senators’ speeches from the Congressional Record. I also talked to a Clinton-appointed District Court Judge to get a firsthand perspective of the process.

These methods combined enabled me to make conclusions from the information I found.

Background- Constitutional Convention

In 1787, delegates from all over the country met in Philadelphia to create a

Constitution. Due to the way the convention was set up, the delegates discussed judicial nominations several times. The debates at the convention focused primarily on where the power to appoint judges should be vested. At the time of the convention, many of the state constitutions had their state legislatures choose their states’ judges.x Thinking the

Articles of Confederation did not give the executive branch enough power, the

Constitutional Convention’s delegates quickly accepted the desirability of a significant presidential role in making certain federal appointments.xi

Early on in the convention, the delegates voted for presidential authority to appoint all officers “not otherwise provided for.”xii The delegates struggled on where to vest the authority to appoint the federal judges. The three main proposals were the

Virginia Plan, the New Jersey Plan, and Hamilton’s Plan. They could place the power of appointment in the entire legislature, as proposed by the Virginia Plan; in the Senate

8 alone; with the President alone; or the President with approval of the Senate. Alexander

Hamilton and Gorham pushed the latter proposal of advice and consent. It was twice defeated before the Constitutional Convention ultimately approved it. Finally, late in the convention, Gorham coined the term “advice and consent of the Senate.”xiii

Richard Gerhardt, a Professor of Law at The College of William and Mary who studies the federal appointments process, feels the Appointments Clause was not an unusual compromise due to the framers’ general understanding of the Constitution’s scheme of separation of powers. They were trying to “ensure balance, accountability, and energy. These objectives are apparent in the compromise embodied in the Appointments

Clause.”xiv Article II Section 2, known as the Appointments Clause, of the U.S.

Constitution reads the President “shall nominate, and by and with the Advice and

Consent of the Senate, shall appoint…Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” Power was not only vested in one branch of government. Sheldon Goldman, a Professor of Political Science at the University of

Massachusetts at Amherst who studies judicial appointments, thinks “the placement of the power of judicial selection with the powers of the president rather than those of

Congress suggests that the executive branch is a principal player in the appointment process.”xv The Constitution presumes confirmation that works to the advantage of the

President and his nominees. They require only a bare majority of the Senate for approval, so the Constitution “sets a relatively low threshold for the president’s nominees.”xvi

However, the framers never gave precise meaning to the term “advice.

9 U.S. District Courts

The focus of this study is upon how the interaction between President and Senate is played out in confirming federal district courts and the U.S. courts of appeals’ judges.

The federal district courts are “the trial courts of general federal jurisdiction.”xvii Every state has at least one district court, with some states having as many as four. Altogether, there are 680 district court judgeships authorized by law, including those for the

Commonwealth of Puerto Rico, the District of Columbia, the territories of the Virgin

Islands, the Northern Marianas, and Guam.xviii

U.S. Courts of Appeals

The U.S. Courts of Appeals review appeals from decisions of the federal trial courts and have power to review many administrative agencies’ orders. Usually three judges sit on panels, which hear the cases. In total, there are 179 permanent appellate court judgeships authorized by law. These courts are often called ‘circuit courts’ because they are divided into 12 geographic circuits with a thirteenth nationwide circuit specializing in technical subject matter jurisdiction.xix

Process

The confirmation for both the District and Circuit courts goes through a similar process. The “nomination of any one judge is the culmination of a unique series of interrelated events that propel one person and not another toward the nomination.”xx

There are many players involved the appointment process for lower federal judges. The following are all involved in one way or another: the President and the Office of White

House Counsel, Justice Department Officials, Senators from the President’s party from the state where the potential nominee lives, the Chairman of the Judiciary Committee,

10 members of the House of Representatives (same party as the president) from a nominee’s state (when there are no Senators from the president’s party in that state), other party leaders from the president’s party from the state receiving the nomination (where there are no senators from president’s party), interest groups, the American Bar Association’s

Standing Committee on Federal Judiciary, and those people who aspire to federal judgeships (who campaign for a position). All of these actors play some part in the appointment process.

Starting with the Carter administration, the White House has been involved in judicial selection through the Office of the White House Counsel, which advises the

President on all legal issues. The Senate is active in the confirmation process, with many senators lobbying on behalf of a particular person to have them initially nominated. But senatorial involvement reaches its height at the confirmation stage. When a nomination is sent to the Senate, it is referred to the Senate Judiciary Committee. The committee chair then “blue slips” the senators from the nominee’s state.xxi

Typically, the blue slip system helps those individuals with strong home state senatorial backing to receive an inside track for the nomination. Until 1979, if a home state senator from either party did not return the blue slip given for comments about a candidate to the Judiciary Committee, it was an implicit “silent veto” from home state senators over presidential nominees who would sit on federal bench in their states.

Hence, a hearing would not be scheduled.xxii In 1979, Senator Edward Kennedy (D-MA) became chair of the Judiciary Committee and announced that a nominee would no longer die through the blue slip system. Instead he wanted the full committee to be able to

11 discuss all nominations and be able to determine if they should hold hearings and continue with the nomination.xxiii

Judicial nominations sometimes fail to advance through several procedural steps that are part of the appointment process. Following referral to committee, “a nomination might fail to receive a hearing or, after receiving a hearing, might fail to receive a committee vote on whether it should be reported.”xxiv Even if committee reports it, it still might not receive a vote from the Senate on whether to confirm. When the nomination fails to receive a Senate vote, the President usually withdraws the nomination or it is returned to the President upon Senate adjournment.xxv Therefore, the system is made of several steps that allow Senators to keep a candidate from moving forward if they feel strongly enough that the candidate is not up to their standards.

History of Nominations

The Judiciary Act of 1789 established the structure of the federal court system. It prescribed that there would be both district courts and circuit courts. Before 1869,

Congress had only authorized district court judges and Supreme Court justices to be appointed, while they had to cover for the circuit courts. The year 1869 brought separate judgeships for the circuit courts and 1891 marked the end of circuit riding that judges had done and created the of courts of appeals.xxvi Until 1853 the office of the secretary of state was in charge of judicial selection, when President Franklin Pierce shifted responsibility to the Attorney General.xxvii

Over time, several changes arose in the process of judicial nominations. The changes that occurred in confirmation politics can be best understood when looking at the context out of which they arose.xxviii The rise of political parties in America’s democracy

12 has greatly influenced the federal appointments process. The rise of parties coincided with and helped to fundamentally shape presidents’ and senators’ conceptions and exercises of their prerogatives regarding appointments. For example, “President George

Washington maintained that merit was a prime consideration for any appointment, along

‘with service during the Revolution, firm support for the new Constitution, and equity among the states.’”xxix

But political parties began to change presidents’ view of judicial nominations.

Party loyalty became an early and persistently dominant criterion in presidential choices for federal appointments. A good example of this party loyalty was when President John

Adam’s attempted to pack the federal judiciary with more than fifty loyal Federalists the day before the inauguration of Republican Thomas Jefferson. Being the first president to implement the spoils system, President Andrew Jackson took it to new heights. Almost every other nineteenth century president used the spoils system in addition to removing and replacing other party’s presidential federal judicial appointments. They “used patronage to accomplish many ends, not just to reward party and personal loyalty. They employed it to gain further control over the exercise of executive power, the making or implementation of national policy, and the direction of the federal judiciary.”xxx

While the political party of the president played a large part in the process in the nineteenth century, the influence of major political parties declined in the 20th century.

The “decline in the control of political parties over federal appointments has coincided with the rise in influence of a much broader range of factors, including personal and other kinds of allegiances and factional interests in the political process.”xxxi

13 The Senate has also had an evolving role in the federal appointments process.

From the beginning the Senate took the “advice and consent power seriously, even rejecting Washington’s recess appointment of John Rutledge to be the second Chief

Justice of the Supreme Court.”xxxii They have felt an obligation to not merely accept every single nomination given to them by the President. Traditionally, they have wanted to make sure the nominees were qualified, which they determined through the ABA’s rating system, and ideology was not as big of an issue.

Structural changes have affected the Senate’s role in judicial appointments. The

Seventeenth Amendment, which was ratified in 1913, “changed the way senators were selected, taking the power of election away from state legislatures and giving it to the people.”xxxiii It made judicial confirmation subject to electoral review, comment, and reprisal. In addition, the Senate has made several important changes in its procedures and internal operations, which have made it a body “dominated by individuals with separate agendas and characterized by delegation of substantial authority to…committees, powerful committee chairs, and individual senators.”xxxiv Senators attempt to balance maintaining a roughly equal footing with the president regarding appointments with trying to be efficient and dealing increased media coverage of their operations. In fact,

“no other actor routinely involved in the federal appointments process receives more attention or criticism than the Senate.”xxxv Part of the reason is that their formal authority has never been all that clear. Over the years individual senators, especially those of the president’s party from the state where there is a judicial vacancy, have been able to exert great influence on presidential administrations in the selection of federal judges.xxxvi As

Gerhardt explains, “the Senate has evolved from a collegial body populated mostly by

14 specialists to a group in which individual senators tend to fend for themselves, work to secure their own reelections or other ambitions, are somewhat [more] beholden to political parties than their predecessors, and must interact with a growing number of interest groups and factions with vested interests in or serious concerns about increasingly divergent kinds of legislation.”xxxvii

While all of these actors are regularly involved in judicial appointments, the

President has the greatest potential to influence events or outcomes, especially on the appeals courts.xxxviii At least since Richard Nixon, presidents have publicly declared judicial nominations to be of great importance to their policy agendas. The lengthy political life of the “lower judiciary is often viewed as an opportunity to shape policy well after a president leaves Pennsylvania Avenue.”xxxix With circuit court nominations involving several states, senatorial courtesy has less of an effect, as a senator essentially has a veto for district court nominees. About 70 percent of circuit court nominations are selected from the exact same state as the departing judge. Yet presidents are given more control over the selection of nominees to courts of appeals positions than to positions on the district courts. xl Circuit judicial nominees are not as closely associated with the senators from one state because there are several states involved. Therefore, the president has more leverage in appointing judges to the circuit courts.

Confirmation rates reflect the changes in the process. The confirmation rate for

“all lower court judges has slowly decreased over time.”xli While data indicate that conflict in the confirmation process has increased over time, the mid- to late 1970’s greatly increased the conflict. But the biggest increase in scrutiny appears to coincide with the failed nomination of Judge Robert Bork to the Supreme Court in 1987. Roger E.

15 Hartley, Assistant Professor of Public Administration and Policy in the University of

Arizona’s Eller College of Business, and Lisa M. Holmes, Assistant Professor of Political

Science at the University of Vermont, think that these “events cued the Senate to act more cautiously in terms of their role in confirming lower court judges.”xlii

Many of the appointment norms began to change during the Carter administration

(1977-1981), when the president “initiated a number of significant reforms aimed at lessening the control of individual senators over the vetting and selection of nominees and instead placed more power and control within his administration.”xliii Attempting to remove the vestiges of patronage, Carter felt his administration would need to take more control from individual senators. Thus, he established the United State Circuit Judge

Nominating Commission to seek out and screen qualified nominees to the courts of appeals. The passage of the Omnibus Judgeship Act of 1978 increased the number of positions on the federal bench, so Carter was able to use new positions to implement his appointment strategy and appoint liberal leaning judges.xliv Carter meant well, but the

Senate was not thrilled with the changes that he made.

Then President Ronald Reagan (1981-1989) further altered the selection process.

In order to appoint more conservatives, he centralized judicial selection within the White

House even more to give his administration increased control over nominations. He established the Office of Legal Policy within the Department of Justice, which became the center of the screening process for judicial selection at the Justice Department.

Reagan had the “highest levels of the White House staff” play an ongoing, active role in the selection of judges.xlv Additionally, he requested that individual Republican senators submit three to five names to the administration for every district court vacancy, which

16 would further pull control away from individual senators.xlvi President Reagan also initiated the practice of making telephone calls himself officially asking individuals to accept judicial nominations. This action “underscored the importance the administration placed on judicial selection.”xlvii

Committees responded by trying to grab back some of the control over the process. Senator Edward Kennedy, upon taking chair in 1979 of the Judiciary Committee, removed the blue slip system. Through establishing an investigatory staff for the committee to examine the professional records and backgrounds of the judicial nominees,

Sen. Kennedy enabled the Senate to rely less upon the Department of Justice. xlviii When

Sen. Strom Thurmond chaired the Senate Judiciary Committee under President Reagan

(for his first six years), he retained Sen. Kennedy’s reforms.xlix Thus the Senate had a way of responding to presidential changes by making their own changes to the system.

So the changes that were made gave President Clinton a situation that would soon lead to gridlock when he faced divided government. The “institutional changes initiated within both the Senate and the presidential administration during the Carter years launched what has become the gridlock in the appointment process.”l While the presidential reforms tried to take more control of the process for the president at the expense of home-state senators, committee reforms were targeted at more closely and independently scrutinizing the nominees to the lower judiciary that were referred by the president. Carter’s changes “have caused each branch involved in the appointment process to establish and maintain more independent and careful mechanisms through which to evaluate judicial nominees.”li The history of confirming judges displays competition for power amongst different branches of government.

17 Clinton’s years with United Government

Structure

Now I will look closely at President William Jefferson Clinton’s presidency,

1993-2000. His first congressional session was with united government, which was the

103rd Congress (1993 and 1994). The Clinton Administration was structured in the following way. The Office of Policy Development and the White House Counsel’s Office jointly worked on judicial nominations.lii A key figure was Eleanor D. Acheson, assistant attorney general for policy development. She oversaw the Justice Department’s selection activity. Her deputy, Peter Erichsen, worked full-time on judicial selection. Roslyn Mazer was a deputy who also spent much time on judicial selection.liii

Process

Sen. Orrin Hatch, former Chairman of the Senate Judiciary Committee, has said to “be placed on the federal bench, nominees must risk exposing themselves to a modern- day witch-hunt in which no mistake is petty enough to be excused, no past oral or written statement sufficiently ancient to be ignored, and no personal fact or family issue too private to be exposed.”liv His perspective is helpful for looking in-depth at the confirmation process during Clinton’s presidency.

The judicial nomination process started within the Justice Department with the assignment of each candidate to a Justice Department lawyer, who analyzed the candidate’s credentials and any relevant judicial decisions. Candidates for the district bench came from recommendations by Democratic senators or Democratic members of the House or high-ranking Democratic Party politicians. They began the screening process by a lengthy, in-depth phone interview with the candidate and then many follow-

18 up calls to those who had professional dealings with the candidate. An FBI background check was also conducted simultaneously at this time. There was a judicial selection committee in the Justice Department, which oversaw the screening process. Peter

Erichsen chaired this committee through the end of the 104th Congress.lv

The Office of White House Counsel handled the more political aspects of the confirmation process. After a nomination had been made, they sounded out GOP

Senators and worked closely with Sen. Orrin Hatch, the ranking Republican on the

Senate Judiciary Committee during the 103rd Congress. A former chief counsel of the

Senate Judiciary Committee, Ronald A. Klain handled judicial selection in his capacity as associate White House counsel. Victoria L. Radd replaced him at the end of 1993 and

Peter Erichsen later replaced her. The White House Counsel chaired the Judicial

Selection Group, a joint White House-Justice Department committee, which met regularly throughout Clinton’s presidency to discuss candidates for judgeships and to make recommendations to the president. For court of appeals candidates, the White

House counsel’s office often initiated the screening, but the Office of Policy

Development was almost completely responsible for screening district court candidates.lvi

Results

The results of Clinton’s first period show the effects of a united government.

During the 103rd Congress, Clinton’s first two years as President, 118 people were nominated for lifetime judgeships on the district courts and 107 were confirmed (about

91%). For the courts of appeals, 21 nominations were made and 18 were confirmed

(about 86%).lvii

19

District Court Appointees

Table 1 U.S. District Court Appointees compared by administration President Carter Reagan Bush (41) Clinton Male 85.6% 91.7% 80.4% 68.2% Female 14.4% 8.3% 19.6% 31.8% White 78.7% 92.4% 89.2% 64.5% African-American 13.9% 2.1% 6.8% 25.2% ABA rating EWQ/WQ 51% 53.5% 57.4% 60.7% Qualified 47.5% 46.6% 42.6% 36.4% Not Qualified 1.5% 0.0% 0.0% 2.8% Source Goldman, Sheldon and Elliot Slotnick. 1997. ‘Clinton’s First Term Judiciary: Many Bridges to Cross.” Judicature. 80:254-273. P. 254

The Clinton administration prioritized increasing the number of women and minority (nontraditional) appointees. Table 1 shows some important characteristics of

Clinton’s district court appointees (ie. those nominated by the president and confirmed by the Senate) in comparison with the most recent presidents. Clinton was able to appoint 27

African Americans to U.S. District Courts, so that one out of every four of his district court appointees was African American Additionally, almost one out of three of his appointments were women (31.8% of his appointees). Both of these accomplishments were the highest proportions of African-Americans and women in the first two years of a presidency for the previous 4 presidents. Approximately 60% of Clinton’s appointees here were rated by the ABA as well qualified, 36.4% were qualified, and 2.8% were not qualified, making Clinton’s district court appointees more diverse and slightly better qualified than previous presidents’ appointees.

20 Appeals Court Appointees

Similar to Clinton’s district court appointees, his appeals court appointees showed the move toward more non-traditional appointees. Table 2 compares the percentages of

Clinton’s appointees to Carter, Reagan, and Bush (41). Of the 18 appeals court nominees

Table 2 U.S. Appeals court appointees compared by administration President Carter Reagan Bush (41) Clinton Male 80.4% 94.9% 81.1% 72.2% Female 19.6% 5.1% 18.9% 27.8% White 78.6% 97.4% 89.2% 72.2% African American 16.1% 1.3% 5.4% 16.7% Hispanic 3.6% 1.3% 5.4% 11.1% Party ID Democrat 82.1% 0.0% 5.4% 88.9% Republican 7.1% 96.2% 89.2% 5.6% None/Other 10.7% 3.8% 5.4% 5.6% Past Party Activism 73.2% 65.4% 70.3% 50.0% Source Goldman, Sheldon and Elliot Slotnick. 1997. ‘Clinton’s First Term Judiciary: Many Bridges to Cross.” Judicature. 80:254-273. P. 254

confirmed, 3 were African-Americans and 2 were Hispanics. He also appointed 5 women to appeals court judgeships. Even with these low numbers it is clear that Clinton focused on appointing non-traditional appointees. Another important statistic was that 88.9% of

Clinton’s appeals court appointees were Democrats and half of them had past party activism.lviii These numbers indicate that Clinton, like other presidents, was filling the core of his judiciary with members of his party. However, the percentage of appointees with past party activism was noticeably lower than Carter, Reagan, and Bush (41).

Extreme judges?

A Republican could say that Clinton’s appointees are extreme, as easily as a

Democrat could argue that they are moderate. In general, it is difficult to assess how extreme or moderate judges are based upon the information that is available. Judicial

21 nominees do not take an ideology test and often are purposefully vague on controversial questions they are asked in the Senate. Nominees who were formerly judges might have information in their previous decisions, but even that is subject to interpretation. So it is hard to tell if they really are extreme and it often depends who is making the call. The only help is the category of past party activism; therefore, it is hard to substantiate any claims that appointees are extreme. Still one could argue that past party activism at least points to nominees being highly partisan.

Analysis

Throughout Clinton’s first two years as President, his judicial confirmation process was similar to other president’s confirmation processes. With the Democrats controlling the White House and both houses of Congress, Clinton was in a comfortable position to be able to appoint the nontraditional judges whom he wanted. Clinton worked closely with then Chairman of the Judiciary Committee, Sen. Kennedy in moving almost all of his nominees forward through the Senate. Clinton did appoint some partisan

Democrats, most of which were well qualified. However, the percentage of these appointments with past party activism was noticeably lower than Carter, Reagan and

Bush (41). Based upon past party activism, most of Clinton’s appointees were not extreme. Overall, the judicial confirmation process proceeded much like it had for previous presidents. Thus, Clinton’s appointments did not make any large waves in the

103rd Congress.

Clinton’s years with Divided Government

In the 1994 elections, Republicans made historic gains to take over majorities in both houses of Congress for the first time since 1952. Some saw this as a reaction against

22 President Clinton’s policies. The Republicans were clearly well organized and pumped money into important races where they felt they had the best chances of winning open seats and defeating weak Democratic incumbents. Whatever the cause, President Clinton now faced a much different Senate, one that was controlled by the opposition party and a

Judiciary Committee that Republican Sen. Orrin Hatch now chaired.

Structure

The structure within the Clinton administration remained essentially the same as it was under united government. Judicial selection continued much as did during the first part of his presidency, but at the White House greater personnel resources were invested to help accelerate the pace.lix

Process

With the changes in the Senate, it was hard to predict what would happen to the judicial confirmation process. Some people anticipated “’payback time…’ for attacks on

Supreme Court nominees Robert Bork and Clarence Thomas, as well as for the alleged sabotaging of several lower court nominations or potential nominations by a Democratic

Senate during the Republican Reagan-Bush presidencies.”lx Presidential candidate Bob

Dole, who could gain a lot by making Clinton’s life difficult with judicial nominations, was now leading the Senate. Also, leadership of the Senate Judiciary changed from Sen.

Joseph Biden (DE-D) to Sen. Orrin Hatch. So the face of judicial confirmation was poised to change a lot from the 103rd to the 104th Congresses.

Despite the divided government things seemed to be running smoothly in the beginning of the relationship between the Clinton administration and the Hatch-led

Judiciary Committee. Senator Hatch “exhibited substantial professionalism and, as

23 attested to by administration sources as well as by both Republican and Democratic

Senate staff, he pursued a commitment to work with the administration to see nominations through to confirmation.”lxi Goldman and Slotnick, authors of several articles analyzing judicial appointments, thought that it was possible for there to be a nonconfrontational mode of operation with the Republican Senate majority because

Goldman and Slotnick thought ideology was not the basis for Clinton’s selection process.lxii It seemed the President was careful in his legislative battles and did not want to expend a lot of energy on federal judicial appointees.

Within the Clinton Administration, judicial selection in the 104th Congress continued on much like it did during the 103rd Congress, but the White House invested more personnel resources to help accelerate the pace.lxiii Eleanor D. Acheson remained the

DOJ’s head of the Office of Policy Development (OPD). The nomination process began with the White House counsel’s office sending a prospective nominee’s name to the

OPD, where it was assigned to a lawyer to be in charge of the vetting process for that individual. The vettor reviewed extensive questionnaires that the prospective has already filled out and if nothing appeared as disqualifying then the vettor initiated a one-on-one phone interview. Assuming everything went well, the vettor would then report about their candidate to a regularly meeting OPD working group, which decided whether or not to move to the next step of a personal interview with the candidate. Then the candidate was told to submit his/her ABA questionnaire to the ABA and the FBI started a full field investigation of the candidate. An OPD memo on the candidate then went to the attorney general. The joint White House-Justice Department committee next met to determine if the candidate should be recommended to the president for nomination.lxiv

24 During the Clinton’s second term, his administration maintained a similar approach as in the rest of his presidency. lxv In the second half of Clinton’s second term,

Beth Nolan replaced Charles Ruff as White House Counsel, Sarah Wilson became the

Senior Counsel for Nominations, and to take Wilson’s place, Eric Angel became

Associate White House Counsel. The regular meetings continued well into 2000. The working group meetings within the OPD met until late summer 2000, while the Judicial

Selection Group, the joint Justice Department/White House committee, kept on meeting every Thursday until just a few weeks before the presidential election. The Judicial

Selection Group also had to focus on strategies for moving nominations that had been already made but were languishing in the confirmation process in addition to making decisions about whom to nominate.lxvi

Toward the end of Clinton’s second administration, the Justice Department started occasionally looking at two or three people simultaneously for each district court vacancy, rather than evaluating one person at a time in order to speed up the process. For appeals court positions, it still remained more common to evaluate more than one candidate for specific slots.lxvii

There was a “shift…towards greater White House involvement and control” in the second half of Clinton’s second term.lxviii The balance of judicial selection had shifted from the Justice Department to the White House Counsel’s office. It was a reflection of the political realities that the Administration faced, rather than a strategy that they developed.

In fact, the President would personally hear about potential nominees as a regular agenda item that came up in meetings he had with White House Counsel’s staff or with his Chief of Staff, John Podesta.

25 Results

The results of Clinton’s nominees indicated a noticeable decline from the 103rd

Congress. For the 104th Congress, 85 people were nominated for the district bench and 62

were confirmed (about 73%) and 18 were nominated for the courts of appeals and 11

were confirmed (61%). During the 105th Congress, the Senate confirmed 79 of 94 district

court nominees (84%) and 19 of 29 appeals court nominees (67.9%).lxix In 1999-2000, the

Senate confirmed 57 of 83 district court (68.7%) and only 13 of 32 (40.6%) of court of

appeals nominees. These numbers were low for several reasons. A process that had once

been routine for most nominees became an obstacle course fueled by partisan and

ideological divisions which only a small number of nominees were able to avoid.lxx Very

few nominees went through he process easily and quickly.

District Court Appointees

Table 3 Comparing Clinton's district court appointees Congress 103rd 104th 1st Term 105th 106th % N % N % N % N % N Male 68.2% 73 72.6% 45 69.8% 118 76% 60 70.2% 40 Female 31.8% 34 27.4% 17 30.2% 51 24% 19 29.8% 17 White 64.5% 69 85.5% 53 72.8% 123 77.2% 61 79% 45 African-American 25.2% 27 9.7% 6 19.5% 33 17.7% 14 10.5% 6 Hispanics 8.4% 9 3.2% 2 5.9% 10 2.5% 2 10.5% 6 Asian-Americans 0.9% 1 1.6% 1 1.2% 2 2.5% 2 0% 0 Native Americans 0.9% 1 0% 0 0.6% 1 0% 0 0% 0 Democrats 88.8% 95 93.6% 58 90.5% 153 87.3% 69 80.7% 46 Republicans 2.8% 3 1.6% 1 2.4% 4 8.9% 7 12.3% 7 Past Party Activism 53.3% 57 54.8% 34 53.9% 91 49.4% 39 40.4% 23 Source Goldman, Sheldon and Elliot Slotnick. 1997. ‘Clinton’s First Term Judiciary: Many Bridges to Cross.” Judicature. 80:254-273. P. 254 and Goldman, Sheldon, Elliot Slotnick, Gerard Gryski, and Gray Zuk. “Clinton’s Judges: Summing Up the Legacy.” Judicature. March-April 2001. Vol. 84. No. 5

26 For nominations to the district courts of appeals there were some observable trends. One trend that can be seen is that Clinton tried to play it safe with his district court appointees through nominating more traditional candidates with established career paths valued by the ABA committee. Table 3 lays out Clinton’s district court appointees by

Congressional session to show the changes that occurred during his two terms as president. He appointed many more white males (traditional nominees) in the second half of his first term, than in the first half of it (86% to 65% were white, and 73% to 68% were male).lxxi

Yet, there is “no doubt Clinton’s greatest judicial legacy is his successful effort at diversification of the bench by gender and ethnicity.”lxxii Diversification was more successful for Clinton in his first term than during the second term. For the first term, a record breaking 52.1 percent of all appointees were nontraditional, but in his second term that percentage dropped to just over 4 in 10 appointees being nontraditional, which still surpassed that of every other president.lxxiii Clinton was able to name a total of 87 women or 28.5 percent of all his district court appointees (see Table 4). More than 17 percent of

Clinton’s appointments to the district bench were African Americans, which beat the old record of 14 percent that Carter held.lxxiv So Clinton prioritized appointing women and

African-Americans.

While Clinton continued to appoint large numbers of women and African-

Americans in his second term, the proportion of Hispanics fell and the proportion of

Asian-Americans was small and Native Americans was almost nonexistent.lxxv The proportion of Hispanics that Clinton appointed was below Carter’s record, but above the

Reagan and Bush (41) percentages.lxxvi

27 Table 4 U.S. district court appointees compared by administration President Carter Reagan Bush (41) Clinton Male 85.6% 91.7% 80.4% 71.5% Female 14.4% 8.3% 19.6% 28.5% African-American 13.9% 2.1% 6.8% 17.4% Hispanics 6.9% 4.8% 4.0% 5.9% ABA Well Qualified 51.0% 53.5% 57.4% 59.0% Qualified 47.5% 46.6% 42.6% 40.0% Not Qualified 1.5% 0% 0% 1% Source Goldman, Sheldon, Elliot Slotnick, Gerard Gryski, and Gray Zuk. “Clinton’s Judges: Summing Up the Legacy.” Judicature. March-April 2001. Vol. 84. No. 5

Only one of Clinton’s appointees in the 104th Congress was a Republican, a statistic which reflects the highest level of partisanship since FDR. In fact the “proportion of opposition party appointees is the smallest of all four presidential administrations.”lxxvii

But the proportion of Republicans that Clinton appointed in the 105th Congress was about triple that of his whole first term. These “statistics suggest that the Clinton administration, to a limited extent, felt obliged to accommodate Republican senators, an inevitable bowing to the reality of the Republican stranglehold on the confirmation process.”lxxviii The proportion of Democrats appointed to the district courts during Clinton’s last two years was the lowest of his presidency, which likely was due to the politics of confirmability. Additionally, the proportion of Republicans confirmed was at the highest percentage of Clinton’s years. Another outstanding statistic was that for the first time during his presidency, the proportion of appointees who had been active in political parties dropped to about 40 percent.lxxix

Over the last half of Clinton’s second term, more than 3 in 5 appointees had the highest ratings from the ABA. Overall, Clinton barely edged out Bush(41) for the largest percentage of appointees with the ABA’s highest ratings for the last four presidents.

Also, for the first time ever, a majority of the appointees had a net worth of at least $1

28 million.lxxx So there were some interesting trends in Clinton’s years with divided government.

Appeals Court Appointees

Likewise, there were some interesting trends in Clinton’s appeals court appointees. Since there were only 18 in the 103rd Congress, 11 in 104th Congress, 19 in the

105th Congress, one needs to be careful in making conclusions based upon such small numbers. According to Goldman and Slotnick, however, Clinton’s appointees were similar in many ways to previous President’s appeals court appointees.lxxxi

Tables 5 U.S. appeals court appointees compared by administration President Carter Reagan Bush (41) Clinton Male 80.4% 94.9% 81.1% 67.2% Female 19.6% 5.1% 18.9% 32.8% White 78.6% 97.4% 89.2% 73.8% African-American 16.1% 1.3% 5.4% 13.1% Hispanic 3.6% 1.3% 5.4% 11.5% Source Goldman, Sheldon, Elliot Slotnick, Gerard Gryski, and Gray Zuk. “Clinton’s Judges: Summing Up the Legacy.” Judicature. March-April 2001. Vol. 84. No. 5

Where Clinton departed from past trends was in the proportion and number of non-traditional appointments he made. Overall, Clinton appointed a record proportion and number of women to the appeals courts, as seen in Table 5. His last two years of appointments showed an increase in Hispanic and African American appointments, but

Clinton’s percentage of African-Americans was still not as strong as Carter’s had been.lxxxii

As Table 6 shows, the proportion of nontraditional appointees decreased substantially from 55.2% to 42.1%, but it was still higher than the next highest, Jimmy Carter (39.3%).

The nontraditional appointees in his second term earned higher ABA ratings than their white male counterparts.lxxxiii The political activity of Clinton’s appeals courts appointees is

29 of note because all of the white males had a history of some political activity, but none of the nontraditional appointees had such a record.lxxxiv

Table 6 Clinton's nontraditional appointees compared to his traditional appointees to the federal appeals courts, 1999-2000 Nontraditional appointees Traditional appointees % N % N Male 42.90% 3 100% 6 Female 57.10% 4 0 0 ABA rating Well Qualified 71.40% 5 100% 6 Qualified 29% 2 0% 0 Past party activism 0% 0 100% 6 Source Goldman, Sheldon, Elliot Slotnick, Gerard Gryski, and Gray Zuk. “Clinton’s Judges: Summing Up the Legacy.” Judicature. March-April 2001. Vol. 84. No. 5

Sampling of Judicial Nominees

A sampling of Clinton’s judicial nominees will help to show what the average

Clinton nominee was like. Richard A. Paez was born in Utah and received his undergraduate degree from Brigham Young University before getting a law degree from

U.C. Berkley. After settling in California, he worked on poverty law issues and then joined the Legal Aid Foundation of Los Angeles. The year 1981 brought a Los Angeles

Municipal Court judgeship for him. President Clinton nominated him to the federal district court bench in 1994. Then on Jan. 25, 1996 he was nominated to the Court of

Appeals for the Ninth Circuit, but had to be re-nominated again on Jan. 7, 1997 and Jan.

26, 1999. Conservative Republican senators claimed to see liberal activism in his record.

Eventually his nomination was brought to a vote after a filibuster was busted by a 85 to

14 vote. He finally was confirmed by a vote of 59 to 39 on March 9, 2000, four years after his initial nomination.lxxxv He also had support from Republican Sen. Hatch.lxxxvi

30 Adalberto J. Jordan was born in Havana, Cuba and completed his undergraduate and law school education at the University of Miami. He was able to first clerk for federal appeals court judge Thomas Clark and then U.S. Supreme Court Justice Sandra

Day O’Connor. Next, he went into private practice before joining the U.S. Attorney’s office in the Southern District of Florida in 1994. At the age of 37, he was nominated for the federal district bench for the Southern District of Florida on March 15, 1999, and then was confirmed on Sept. 8, 1999 by a vote of 93 to 1.lxxxvii So he did not face any major opposition.

Ellen Segal Huvelle was a long time resident of Boston, Massachusetts, she attended Wellesley College for her undergraduate degree and Boston College Law

School for her law degree. She also earned a master’s degree in city planning from Yale

University. She clerked with the chief justice of Massachusetts Supreme Judicial Court before moving to Washington, D.C. and being in private practice. She was appointed by

President George H. W. Bush (41) to be an associate judge on the District of Columbia

Superior Court. So then President Clinton nominated her for the federal district bench in

D.C. on March 25, 1999, and she was easily confirmed on October 15 of that same year.lxxxviii

Marianne O. Battani was born and later educated in Detroit, Michigan. After being in private practice for a while, she later entered the state judiciary in 1981 as a

Common Please Court judge. Next she was appointed and then elected and re-elected four times to the Wayne County Circuit Court in 1982. From there, she was elevated to the federal district bench for the eastern district of Michigan. After being nominated on

August 5, 1999, she was confirmed by the Senate on May 24, 2000.lxxxix She once said,

31 “We really have no definition of mother in our law books. Mother was believed to have been so basic that no definition was deemed necessary” in ruling that the biological mother of an infant conceived outside the womb is the “true” mother as opposed to the woman who carries the child to term.xc Theses appointees display the wide variety of people that President Clinton appointed.

The Effect of Presidential Politics

The Senate Majority Leader running against the incumbent President caused an interesting effect in the confirmation process. In 1996, presidential electoral politics and

Sen. Majority Leader and Presidential candidate Bob Dole held the confirmation of federal judges hostage to limit the flow of Senate business in the interest of his campaign until he resigned his seat in the Senate in June 1996.xci It seemed that Sen. Hatch’s authority was being undermined in the interest of presidential politics.

Politics

There were a number of political actions that affected the judicial confirmation process. In Clinton’s second term, the Republicans still controlled the Senate, with Hatch still chairing the judiciary committee, but Sen. Trent Lott (R-Miss) became the Senate

Majority Leader after Sen. Dole left for the campaign. Clinton’s nominees faired better than they did in the 104th Congress (more were confirmed). The administration improved its own handling of judicial selection matters. Supreme Court Chief Justice Rehnquist drew attention to the appointment process through encouraging the Senate to help to fill the vacancies in the federal courts. Furthermore, there was hostile reaction to conservative hubris in causing the gridlock in 1996-1997.xcii But these events brought little

32 alleviation from the following ones, which characterized a partisan battle over federal judges.

Fourth Circuit

Clinton prioritized placing an African-American on the Fourth Circuit Court, which had never been done before. But he “was systematically stymied in his effort to desegregate the Fourth Circuit.”xciii Senator Jesse Helms blocked Clinton’s first two attempts of James A. Beaty Jr., a North Carolina district court judge, and James A. Wynn

Jr., a distinguished North Carolina African American jurist. So Clinton nominated Roger

L. Gregory, a Virginian, whom Virginia Republican John Warner supported. But the

Senate leadership still refused to move the Gregory nomination. That was when an

“exasperated and defiant Clinton” named Gregory to a recess appointment in Dec. of

2000.xciv An “historic and unusual recess appointment,” it was the first time in 20 years that a President had used a recess appointment to fill a judgeship vacancy and Gregory also became the first person to integrate the historically all-white Fourth Circuit bench. xcv

Gregory was renominated by President Bush (43) in the 107th Congress to the Fourth

Circuit Court and was confirmed by the Senate.

Blocking nominees

Sen. Leahy (D-VT) thought that Republicans were using some questionable tactics to prevent Clinton’s nominees from moving forward throughout the process. He said,

This debate is about fairness and the issue that remains is the issue of fairness. For

too long, nominees… have been opposed in anonymity, through secret holds and

delaying tactics--not by straight up-or-down votes where Senators can vote for

33 them or vote against them. They have been forced to run some kind of strange in-

the-dark gauntlet of Senate confirmations. Those strong enough to work through

that secret gauntlet and get reported to the floor are then being dealt the final

deathblow through a refusal of the Republican leadership to call them up for a

vote. They should be called up for a fair vote. They may be defeated--the

Republicans are in the majority; there are 55 Republican Senators; they could vote

them down. But let them have a fair vote, up or down. Let all Senators have to

stand up and vote aye or nay, and be responsible to their constituency to explain

why they voted that way. Unfortunately, nominations are being killed through

neglect and silence, not defeated by a majority vote.xcvi

He felt that the Republicans were not giving many of Clinton’s nominees a fair chance to be confirmed. While the record shows that the Republicans delayed many candidates, there is not as much tangible evidence that Republicans were killing nominees through neglect and silence as Sen. Leahy claims here.

Confirmation delay

Confirmation delay also plagued the appointment process during Clinton’s second term. Even though, the average number of days between a district court nomination being received and the date of the hearing dropped from 161 days in the 105th Congress to 97 days in 106th Congress, it was still higher than the previous record of 92 days in the

Democratically controlled 102nd Congress with President Bush (41).xcvii Another interesting note was the disparate treatment given to nontraditional district court candidates (women and minorities) who were eventually confirmed. They went 120 days between nomination

34 and hearings, whereas white males averaged only 77 days before their nominations resulted in hearings.xcviii

Even starker findings occurred for circuit court nominees. In the 102nd under Bush

(41) and 103rd and 104th under Clinton, the average number of days between nomination and hearing ranged from 77 to 81. In the 105th Congress, that figure exploded to 231 days, but it grew even larger to 247 days in the 106th Congress.xcix

At the circuit court level, Bush (41)’s nominees were confirmed on average 14 days after being reported out of committee in the 102nd Congress, while Clinton’s appointees averaged only 9 days with a Democratic Congress in the 103rd Congress. That number rose to 40 days from committee to floor action in the 104th Congress, 42 days in the 105th Congress, and a record high 68 days in the 106th Congress.c

Furthermore, at both the circuit and district court level, floor action in the Senate was much faster for white male nominees than it was for nontraditional judgeship candidates. In fact it was 19 days faster for appeals court nominees.ci So the Democrats were right in pointing out that the confirmation process had been dramatically slowed done during Clinton’s presidency.

Scrutinizing women and minorities?

Liberal groups criticized the Republicans for “scrutinizing women and minorities much more thoroughly than white male candidates.”cii Yet the Clinton administration advanced a number of nominees (women and minorities) who were anathema to conservative Republican senators. Sometimes the objectionable nominees happened to be the nontraditional ones. A person that Goldman, Slotnick, Gryski, and Zuk interviewed, characterized it by saying that women and minorities nominated for judgeships, “came to

35 prominence, at times, through a nontraditional track and, therefore, didn’t have the same group of friends and validators as somebody who came up through a status law firm. That created a lack of comfort zone, a comfort level, among certain senators and their staffs.”ciii

There was also a partisan desire to save seats on the influential D.C. Circuit Court and likely the Fourth Circuit Court for appointment from a Republican president.

But these claims that the Republicans were purposefully excluding women and minorities from judgeships do not hold tremendous weight. Women and especially

African-Americans have traditionally sided more prominently in the Democratic Party.

So there is a strong possibility that most of the African-Americans and women were blocked for partisan reasons, because they were Democrats, not because they were

African-American or women. There were also white males that Republicans blocked because they were Democrats.

Clinton Effect

Unfortunately for President Clinton, the circumstances were not ideal to assure success in his judicial nominations because the sex scandal led to Clinton’s impeachment and trial early in the 106th Congress.civ The drawn out impeachment took away from

President Clinton’s clout in the nominations that he made. Being a lame duck likely affected the second half of his second term as well because it was hard enough already to successfully appoint federal judges, especially ones to the circuit courts.

Use of Blue Slip System

The blue slip system also affected Clinton’s nominees. As noted, when Carter was president, Senator Edward Kennedy removed the reliance on the blue slip power, but

Strom Thurmond reinstated it. Then after Senator Joseph Biden took it away again, so

36 Orrin Hatch reinstated it. Moreover, Senate Judiciary Committee Chairman Hatch may have expanded its reach. Some Democrats and Clinton Administration officials claimed that Hatch was allowing any Republican Senator to silently veto a nominee. cvIt is hard to tell if their accusations are actually true. Nonetheless, at a minimum individual senators could hold back nominations if they came from their state. So Clinton ran into trouble when he tried to nominate a Democrat from a traditionally Republican state.

Ronnie White

The nomination of Ronnie White and battle over his confirmation demonstrates the highest levels of partisanship in the Clinton years. It is “exemplary of the worst excesses of the politicization of those processes that generally plagued Clinton’s relationship with the Republicans majority.”cvi Ronnie White was the only nominee to actually be voted down on the floor of the Senate. His nomination process demonstrates the strict partisan lines that were often used in judicial appointments during Clinton’s years. Initially, Missouri’s senior senator, Republican Christopher Bond, supported the fellow Missourian White. The other Missouri senator was Republican John Ashcroft (he became Attorney General in 2001) neither blocked the 1998 hearing nor did he commit to supporting White. Eventually, Ashcoft became opposed to White’s nomination as he found out about White’s death penalty record. Republicans apparently soon decided to vote against White’s nomination. On the day of his vote, they held a caucus meeting and convinced Bond to vote against White. This one vote change allowed for complete

Republican opposition to his appointment because White lacked support from neither of his state’s senators. Many Democrats were upset by the politicization they claimed the

Republicans used on White’s failed nomination because the Republicans had made it a

37 partisan issue for the party to vote together. But the Republicans argued it was just part of the process.cvii

The voting down of Ronnie White was one of the Republican’s most clearly partisan moves in this judicial confirmation process. Not only were Republicans seen as changing their mind on White, but they also publicly voted down a nominee to show that they were politicizing the process. However, it does appear to be more of the exception, rather than the rule. A Clinton administration official even noted “Ronnie White stands out an exception. They don’t like voting people down and I think, frankly, one of the legacies with Ronnie White is that they’ll never do that again.”cviii While they either should have voted for him or voted him down in committee, they were faced with a growing

Republican dismay with some of his leftward leanings.

Congressional Record

The Congressional record sheds some light into what some Senators were saying during the first two years of Clinton’s presidency. The Senate Majority Leader at the time, Sen.

Trent Lott (R-Miss) emphasized how seriously he took the confirmation process to be:

These are lifetime appointments to the Federal judiciary, and it is very important

who these people are…and how they are going to rule. We should look not only at

their education, background, and qualifications, but also--particularly when it

comes to circuit judges--what is their philosophy with regard to the judiciary and

how they may be ruling. We have a legitimate responsibility to ask those

questions.cix

Sen. Lott clearly was making sure that the Senate did not just provide a rubber stamp to the president’s judicial nominees. He was making sure that his party took their role of

38 advice and consent very seriously and accepted the responsibility to take a long look at each nominee.

Sen. Orrin Hatch saw a recurring theme in Clinton’s nominees. He was noticing that more and more nominees were not as tough on crime as he would have liked them to have been. He explained,

The general judicial philosophy of nominees to the Federal bench reflects the

judicial philosophy of the person occupying the Oval Office. We, in Congress,

have sought to restore and strengthen our Nation's war on crime and on drugs and

to guarantee the safety of Americans in their streets, homes, and workplaces. For

all of the President's tough-on-crime talk, his judicial nominations too often

elevate the rights of the criminal above the rights of the law-abiding citizen, and

undermine safety in our streets, in our homes, and in our workplaces.cx

Thus, Hatch saw clear evidence that the nominees reflected Clinton’s views on crime in most cases. So he had a coherent reason to oppose some of these nominees if he ardently opposed the president’s stance on crime.

Democratic Senator Patrick Leahy (VT) thought that overall Clinton was doing a good job in appointing high standing federal judges. He commended the President with this speech:

We have been fortunate, Mr. President, in this country that Presidents of both

parties have appointed some of the finest men and women in this country as

Federal judges. Those men and women have upheld the liberties of every one of

us, no matter what our political party might be, no matter what our ideology might

be, no matter whether we are wealthy or poor, and no matter what our

39 backgrounds are. We have been blessed in this country with very, very good

Federal judges. We have had a few clunkers. Yes, we have a few clunkers. I

probably appeared before some at one time or another. But the vast, vast majority

of our Federal judges do a very difficult, very honorable, and a very good job.

The Presidents who appoint them ought to be praised for it. I think that it demeans

the Office of the Presidency and it demeans the Federal judiciary and it demeans

the Senate to make this some a political thing where we go after the incumbent

President and claim that he is not doing a good job in appointing judges. In fact,

President Clinton's judicial appointees have won praise around the country as well

being qualified and centrist.cxi

Not only was Sen. Leahy showing his appreciation for the fine job he thought the president was doing, but he also trying to encourage the Republicans to hold up the nominations of these “very good judges.”

In response to many accusations that Republicans were causing a crisis by slowing down the confirmation process, Sen. Lott countered,

Should we take our time and look at these people who are nominated to be

Federal judges for life and hold sway over us in ways that exceed the

imagination? …Should we take our time, look at them carefully when they are

received in the committee, have hearings on them, ask them a lot of questions,

then send them to the floor and have them checked once again? Yes.cxii

The Senate Majority Leader was defending Republicans in slowing the process down. He thought that there was good reason for the GOP to take their time in looking at each nomination carefully.

40 Unprecedented?

So what was unprecedented about Clinton’s years with divided government?

“President Clinton’s federal district and appellate court nominees…confronted historic delays.”cxiii The opening months of the 105th Congress saw an unprecedented move by

Republicans to stall the confirmation of nominees of a recently re-elected president.cxiv The average number of days from the time a nomination was received on the Hill to the date of a hearing was 58.8 for Clinton in the 103rd Congress under unified government. For

President Bush (41) it was 92.1 days in the 102nd Congress. Then in the 104th Congress, when Clinton faced a Republican majority in the Senate, the average went up to 76.2 days. But in the 105th Congress, the number dramatically rose to 160.6 days. In the 106th

Congress it dropped back to 97 days, yet still was larger than Bush’s under the 102nd

Congress.cxv The data suggest that Sen. Lott played an important role in slowing down the pace of final floor action on Clinton’s judicial nominees. Therefore, “if there was a

‘crisis’ in the appointments process in the Clinton presidency it was a crisis of unprecedented delay at both the committee and floor stages and not, in an absolute sense, inaction on the judgeship front.”cxvi

Goldman and Slotnick saw the opening round of an audacious and bold plan by

Republicans to block Democrat’s candidates as a way of wrestling judicial patronage from the Democrats. They also believe “this court-blocking strategy, unprecedented in its scope, is a congressional analogue of President Franklin Roosevelt’s court-packing plan of 1937.”cxvii There was not a single Republican among the Clinton’s appointees (or nominees) in the 103rd Congress; there was only one Republican in the 104th Congress

41 Sen. Joseph Biden (D-DE) charged that what the Republicans were attempting was “not in line with the last 200 years of tradition.”cxviii Sen. Kennedy agreed and felt that,

The continuing delays are a gross perversion of the confirmation process that has

served this country well for more than 200 years. When the Founders wrote the

Constitution and gave the Senate the power of advice and consent on Presidential

nominations, they never intended the Senate to work against the President, as this

Senate is doing, by engaging in a wholesale stall and refusing to act on large

numbers of the President's nominees.cxix

Additionally, 1999 was a historic year because by mid-year the Senate had confirmed only 2 judges, which was the lowest number ever confirmed midway through a non-election year. Gerhardt believes this could be due to several reasons: fallout from the ongoing culture wars over the past two decades, the Republican Revolution in 1994, dwindling numbers of moderate Republicans in the Senate, and paybacks for the Senate’s rejection of Robert Bork and the badgering of Clarence Thomas.cxx

Thus, I can conclude that the only significant unprecedented Republican moves were to stall the judicial confirmation process during Clinton’s second term. It was done to an extent that had never been seen before in the history of judicial confirmation.

Analysis

The assessments of his judicial appointees vary depending on political affiliation.

Republicans tend to voice the sentiments of what one Republican Senate aide said, “the media consistently says these are moderate nominees,…[but] they are not. They are liberal nominees…just as a Republican will nominate conservative nominees. So the spin, I think, is really bogus.”cxxi Nan Aron, President of the Alliance for Justice, a liberal

42 interest group, thought that Clinton “failed to…fight for his candidates” and got

“moderate judges.” cxxiiYet Goldman thinks “Clinton’s mark on the judiciary, surely a major part of his legacy, is the most diverse cohort of appointees in American history.

Clinton’s legacy is also his strategy of naming primarily political and judicial moderates with impeccable professional credentials.”cxxiii

While Clinton created a legacy through his appointees, the Republican Senate took the process one step further than it had gone before through stalling the nominees.

Democrats charged that Republicans had created a crisis, but they only slowed things down. Politics affected the process in many ways as well. The years of Clinton’s presidency ended with Democrats feeling slighted and wanting to get back at the

Republicans for delaying the process.

Bush’s years with Divided Government

The 2000 election brought about a change of party in the White House. In a very close presidential election, then Texas Gov. George W. Bush was elected president despite a popular vote loss and a contested electoral college victory facilitated by a

Supreme Court decision. The balance of power in the Senate was split 50-50, with the

Republican Vice President able to break the tie. But just five months after Bush’s inauguration, Vermont Senator Jim Jeffords departed from the Republican party to become an Independent, which gave the Democrats control of the Senate 50-49. He announced his decision on May 24, 2001 and officially became an Independent on June

5, 2001. This change in power occurred before any Bush lower federal court nominees were even voted on. Then came the terrorist attacks of September 11th, which propelled

43 American into a war against terrorism both at home and abroad.cxxiv George W. Bush was nominating judges to the lower federal courts in the midst of these momentous events.

Structure

A central component of Bush (43)’s domestic policy agenda was staffing the judiciary. For the Bush Administration “it was very clear from the outset that judges were going to be such a visible part of the President’s program. Judgeships were both symbolically and actually symbols of presidential power.”cxxv This importance stands in contrast to the judicial appointments by Clinton, who was accused by Nan Aron,

President of the Alliance for Justice, of “not making judgeships a priority.” According to

Assistant Attorney General Viet Dinh, the Bush Administration did “not employ any litmus test on any particular issue” because they were looking for “men and women who would follow the law rather than legislate from the bench.”cxxvi

Structurally, the Bush’s Administration’s processes for searching for judicial nominations was at the most basic level similar to recent presidents’ in their reliance on senior personnel from the White House, primarily the Office of White House Counsel, and the Department of Justice’s Office of Legal Policy (OLP). White House Counsel

Alberto Gonzalez (now the Attorney General), Associate White House Counsel Brett

Kavanaugh, and Assistant Attorney General Viet Dinh, who headed DOJ’s OLD, were key players involved in Bush’s judicial nomination process. Returning to the original name of the office, which was created by the Reagan administration, the OLP replaced the Office of Policy Development (OPD) from the Clinton and Bush (41) years.

44 Process

The core of Bush’s judicial selection process was the Judicial Selection

Committee, a joint enterprise chaired by Alberto Gonzalez of White House personnel and

OLP. Other members of the committee were not disclosed because the Bush administration didn’t usually discuss who makes recommendations to the President and who all is involved in the deliberative process. cxxvii

At the beginning of the selection process, the Committee comes up with names to take to the President for “presidential check off.”cxxviii With presidential approval, the DOJ oversees a background investigation of the potential nominee, which includes an internal vetting process by OLP and a normal background check for judicial nominees by the FBI.

The Clinton administration did the political facets of judicial selection under the auspices of White House personnel while the more professional facets were handled by the

Department of Justice. But in the Bush administration it was done without any such distinctions. Bush’s Committee did utilize the White House Counsel’s Office to directly contact and consult home state senators to get reactions ahead of time, so as to avoid problems down the road.cxxix Several Democrats thought Bush altered the fundamental approach to the nature of the consultative processes from the Clinton years. But there does not seem to be much strong evidence for their accusations.

Departure from the Status Quo

There are two main ways the Bush administration departed from the status quo in the judicial selection process. First, at the outset of his administration President Bush ended the formal role of the American Bar Association in the rating of candidates.cxxx Brett

Kavanaugh explained the change in the role of the ABA,

45 the President felt it was unfair and unwise to give one outside group preferential

access to the process, particularly when there are a number of bar associations that

we hear from and the ABA has this preferred role, which seemed unwise….I

think there was a sense by some Democrats at the beginning that this means the

President is going to be turning to people who are not qualified because he’s

scared or afraid of the rating process. Nothing could be further from the truth…It

was really a principled decision about what the appropriate role for the ABA was

and not a decision about what kind of nominees there would be nor a decision

about whether the ABA appropriately could rate the judges as other groups

could.cxxxi

So the Administration felt that they did not want to give the ABA any privileged control of the process. Boyden Gray, White House counsel to the first President Bush, succinctly put it this way, “the ABA, I think, is just as honored now as it was when I was here (with

Bush 41). The only thing is that they don’t get the upfront knowledge about it, but they’re full players. They’re getting everything they’ve always had.”cxxxii When the Democrats took control of the Senate, Leahy, as chairman of the Judiciary Committee still used the ABA rating in consideration on committee, but that was much later on in the process than it previously had been.

There has also been much criticism from Democrats about the Administration’s change. Nan Aron was convinced that the Bush administration changed the ABA’s role because they wanted to have complete secrecy. He thought that the entire judicial selection process was now shrouded in secrecy, when it previously had not been.cxxxiii

46 The second change came on October 30, 2002, when President Bush put forth a timetable proposal to suggest parameters of the judicial selection process’ phases. First, it held that federal judges should give a one-year’s notice of their plans to retire or take senior status. Second, within 180 days of receiving such notice, the president should nominate a replacement judge. Third, the Senate Judiciary Committee should then hold hearings for the nominee within 90 days of receiving a nomination. Fourth, within 180 days of the initial receipt of the nomination, the Senate Judiciary Committee should hold a floor vote. This proposal was to operate irrespective of who is in power. For this change, Brett Kavanaugh advocated a process where people know the rules ahead of time. He proposed, “if you think someone is out of the mainstream, it is incumbent upon you to make that case, whether you are a Republican objecting to a Clinton nominee or a

Democrat objecting to a Bush nominee.”cxxxiv But Democrats were skeptical of Bush’s proposal. A Democratic senatorial aide said, “the proposal doesn’t take into account when a president stacks nominations…there is no regard to how controversial they may be, how time consuming the records may be.”cxxxv The Senate has tried to move the process along quicker, but they have not officially adopted this change.cxxxvi While there is not a clear consensus for his changes, President Bush has tried to slightly alter the process of confirming judges.

Results

According to the Department of Justice’s Office of Legal Policy, President Bush nominated 32 people to serve on the Court of Appeals. Of those 32, only 17 were confirmed during the 107th Congress, while 15 were returned to the President at the end of

47 the term. He then made 99 federal district court nominees. The Senate confirmed 83 of them and 16 were returned at the end of the Congressional session. cxxxvii

District Court Appointments

President Bush was committed to racial and gender diversity in his district court appointments. Setting a Republican record of non-traditional appointees, President

Bush’s non-traditional appointees accounted for almost one-third of his district court appointments. In fact, “there was a lower proportion of nontraditional appointees who had neither judicial nor prosecutorial experience, suggesting that on the whole the nontraditional appointees may have been even better qualified and more experienced than the traditional appointees.”cxxxviii As Table 7 shows, women appointees from Bush were second highest of the past 5 presidencies; accounting for one fifth of his appointees.

Moreover, Bush set a record in terms of highest proportion of Hispanic appointments for the past five administrations. But he was well below Clinton and Carter’s proportion of

African-American appointees.

Table 7 U.S. district court appointees compared by administration President Carter Reagan Bush (41) Clinton Bush (43) Male 85.6% 91.7% 80.4% 71.5% 79.5% Female 14.4% 8.3% 19.6% 28.5% 20.5% White 78.7% 92.4% 89.2% 75.1% 85.5% African-American 13.9% 2.1% 6.8% 17.4% 7.2% Hispanic 6.9% 4.8% 4.0% 5.9% 7.2% Past political activity 61.4% 60.3% 64.2% 50.2% 56.6% ABA rating EWQ/WQ 51.0% 53.5% 57.4% 59.0% 69.9% Qualified 47.5% 46.5% 42.6% 40.0% 28.9% Not Qualified 1.5% 0.0% 0.0% 1.0% 1.2% Source Goldman, Sheldon, Elliot Slotnick, Gerald Gryski, Gary Zuk, and Sara Schiavoni. 2003. “W. Bush Remaking the Judiciary: Like Father Like Son?”Judicature 86:282-309.

48 Due to “the administration’s decision to remove the Standing Committee on

Federal Judiciary Committee of the American Bar Association from the pre-nomination stage, it is of interest to find that the proportion of W. Bush appointees with the highest

ABA rating was the largest of all five administrations.”cxxxix Bush’s proportion of appointees with a record of past political activity was higher than the proportion for the

Clinton appointees, but lower than the other three administrations. Overall, Bush’s district court appointees showed some similar trends to Clinton’s years.

Appeals Court Appointments

Only sixteen persons were confirmed to the Courts of Appeals during 2001-2002.

Even though there are small numbers involved, some interesting findings stand out.

Among nontraditional appointees, 5 out of 6 were serving on the bench at the time of their nominations and the one who was not serving on the bench was serving in a governmental position but had previous judicial experience.cxl

Within the past 5 administrations, Bush’s appointees had the largest proportion with judicial experience. In fact, “the W. Bush appointees had the smallest proportion of appointees with neither judicial nor prosecutorial experience, suggesting that on the whole their professional credentials were as impressive, if not more so, than appointees of previous administrations.”cxli The proportion of Bush’s appointees with the highest

ABA rating was the highest of the three recent Republican Administrations, but lower than Carter’s and Clinton’s (See Table 8).

Bush’s proportion of appointment of women was much lower than Clinton’s historic record, but similar to Bush (41) and Carter’s proportions. Bush set a record for

49 the proportion of African-American appointees at 18.8%. He even exceeded the proportion of African-Americans that President Clinton had appointed.

Table 8 U.S. appeals court appointees compared by administration President Carter Reagan Bush (41) Clinton Bush (43) Male 80.4% 94.9% 81.1% 67.2% 81.2% Female 19.6% 5.1% 18.9% 32.8% 18.8% White 78.6% 97.4% 89.2% 73.8% 81.2% African-American 16.1% 1.3% 5.4% 13.1% 18.8% Past political activity 73.2% 66.7% 70.3% 54.1% 75.0% ABA rating EWQ/WQ 75.0% 59.0% 64.9% 78.7% 68.8% Qualified 25.0% 41.0% 35.1% 21.3% 31.2% Source Goldman, Sheldon, Elliot Slotnick, Gerald Gryski, Gary Zuk, and Sara Schiavoni. 2003. “W. Bush Remaking the Judiciary: Like Father Like Son?”Judicature 86:282-309.

In terms of past political activity, the proportion was three out of four. Although this proportion was much higher than Clinton’s, it is close to the proportions of the three previous administrations. Almost all (9 of the 10) of the traditional appointees had a background of political activity and all of them were Republican, while only half the non- traditional appointees were Republican and half had a background of political activity.

Bush’s Appeals Court appointees reflected diversity of gender and ethnicity, while not being radical in comparison to the last 5 presidents.cxlii

Sampling of Judicial Nominees

Again the sampling of judicial nominees is meant to show what the average nominees looked like. Claire V. Eagan was born in the Bronx in New York City. She graduated from Trinity College and Fordham Law School. She was a law clerk for federal district judge Allen E. Barrow of the Northern District of Oklahoma. Then she went into private practice in Tulsa and became an associate and shareholder in a well- known law firm. She was included in an edition of Best Lawyers in America. She became

50 a U.S. magistrate judge, and was in this position when she was nominated to the federal district bench for the Northern District of Oklahoma. She was confirmed three months later.cxliii

Michael McConnell comes from Louisville, Kentucky and was educated at

Michigan State University and then Law School at University of Chicago. He clerked for

U.S. Courts of Appeals for the District of Columbia Judge J. Skelly Wright and then U.S.

Supreme Court Associate Justice William J. Brennan. Soon afterward he worked as an assistant to the solicitor general in the Reagan administration, but moved to a faculty position at the University of Chicago for the next 11 years. In 1997, he then became a professor of law at the University of Utah. On May 9, 2001, he was among the first group of Bush appeals court nominees, but was stalled because some of his writings and his work with the Federalist Society (a conservative legal fellowship) created some liberal opposition. He finally had a hearing more than 16 months after his nomination. It became clear that he had much support from the academic legal community that cut across ideological lines. Thus, he was confirmed on November 15, 2002.cxliv

Charles Pickering Sr. attended undergrad and law school at the University of

Mississippi. He has built up almost fifty years of experience in the legal profession, in private practice, as a prosecuting attorney, a county attorney, a municipal judge, and as a

U.S. District Judge in the Southern District of Mississippi for the past ten years. He also served as a Mississippi state senator for several years. Currently he is on the Board of

Directors of the Institute for Racial Reconciliation at the University of Mississippi and is working with a group in the City of Laurel to develop a program for kids at risk.cxlv

Opposition arose to his nomination from the left, with Earthjustice, Sen. Leahy, and Sen.

51 Edwards leading the way. They have trouble with his record, particularly on civil rights, women’s rights, and constitutional issues.cxlvi

He was initially defeated in committee on March 14, 2002. Then he was renominated in committee and approved on a party-line vote of 10 to 9 on August 7,

2003. Once his nomination got to the floor, he was filibustered. On November 6, 2003, the cloture vote was 51-42, falling 9 votes shy of the 60 needed to overcome a filibuster.

He was given a recess appointment on February 20, 2004. He retired on Dec. 8, 2004, shortly before his term expired and requested not to be renominated.cxlvii These nominees demonstrate Bush nominated both conservatives and moderates.

Politics

The context of Bush’s judicial confirmation process was a politically hot one. At the beginning were the remnants of Bush v. Gore and a very close presidential election.

There was the “legacy of the acrimonious judicial selection politics of the Clinton years and what many would characterize as unprecedented mistreatment of Clinton’s nominees.”cxlviii The first two years of Bush’s presidency did not witness a floor defeat like that of Ronnie White under Clinton, but two of Bush’s candidates, Priscilla Owen and

Charles Pickering, received almost equally rare negative votes from the Democratic controlled Senate Judiciary Committee.

Additionally, John Ashcroft, who was a key participant in judicial selection battles during the Clinton years, was now the Attorney General, the head of the

Department of Justice, which would play a leading role in vetting potential judicial nominees. Some thought that the “nomination behavior of the administration only served to fan the flames of potential confirmation controversy.”cxlix Marcia Kuntz of the Alliance

52 for Justice, asserted that nominations were made “with absolutely no recognition of the obstructionism during the Clinton years.”cl

Senators also conveyed their views about the confirmation process. Some

Democrats argued that they were doing a good job of confirming judges based upon the fewer number of vacancies. Sen. Charles Schumer (D-NY) explained,

We are not going to play games and say what is good for the goose is good for the

gander. We are not suggesting two wrongs make a right. We are not going to

increase the percentage of vacancies. Instead, we are going to decrease it, and we

have gotten a good start to the task. But the proof is in the pudding or, in this case,

in the numbers. We are going to fill these open seats as quickly as possible, but

we are going to do it right. No one is going to cower us in the time-honored,

constitutional way in which we select judges, which has been always in the

history of this country, at least during our better moments, when we do it with

care.cli

His point sounds very familiar to what Republicans were saying when Clinton was president.

But now the Republicans saw the vacancies among the Circuit Courts of appeals as a problem though. Sen. Allard (R-CO) said,

The current state of judicial nominations is simply unacceptable. It has evolved

into a petty game of entrenchment, creating a vacancy crisis that prevents the

service of the very justice upon which our great Nation depends. The simple fact

remains: Justice cannot be delivered when one of every six judgeships on the

appellate level remains vacant. I will repeat that: One out of every six judgeships

53 on the appellate level remains vacant. It is unfortunate--perhaps even shameful--

that the confirmation stalemate continues. How much longer will the American

people have to wait? How much longer? Many people across the country are

asking this same question and responding by urging the chairman to act quickly

and provide hearings for qualified judges. The sentiment is being echoed across

the pages of every major newspaper in the Nation and the State of Colorado. They

all agree that the Senate must act to fill judicial vacancies and end this vacancy

crisis.clii

His words indicate that there was popular support for approving many of Bush’s nominations as opposed to delaying their confirmation.

C. Boyden Gray did not think that the confirmation delay of Bush’s nominees was simply payback for treatment of Clinton’s nominees in saying, “what changed two years ago was doing slowdown the first year of a president’s term, and that was new. The

Democrats will argue, though, that it’s just tit for tat for what happened during the

Clinton years. But it isn’t really, because you’re measuring last year versus first year and, of course, if the first year figures carry through, then the appellate nominees will really be decimated.”cliii Gray conceded that slowing down confirmation processes regularly occurs near a presidential election, but it has not been tradition to do it in the first two years.

That was new.

So this was the environment that Bush entered with his first 11 judicial nominees on May 9, 2001. The group was diverse and very experienced and included Roger

Gregory, who had previously received a recess appointment from Clinton to be the first

African American to sit on the Fourth Circuit Court. But many of the candidates raised

54 red flags for Democrats who saw their conservative records. To announce these nominees, President Bush held a press conference and showed them as examples of the types of judges he wanted. It was considered a bold move and demonstrated the President meant business when it came to his judicial nominees. Two years later, over one-fourth of them would remain unconfirmed. There were many unconfirmed and even negative votes on the Judiciary Committee, which made “federal judicial selection to the lower courts an election issue of some, perhaps unprecedented magnitude in the midterm congressional elections of 2002.”cliv

At the end of the 107th Congress, neither the Democrats nor Republicans were happy. The Republicans did “not feel that they are getting their fair share of judges through the confirmation maze; for its part, the Democratic opposition [did] not feel that it is receiving appropriate consultation from the White House nor sufficient respect, within the Senate, for long time institutional norms and traditions.”clv The Democrats seemed to be sending the message to the White House that any future “nominees to the appeals courts would have to be considerably more moderate ideologically and philosophically in the eyes of the Democrats in order to win confirmation.”clvi Thus, the politics of confirming federal judges was very polarized during the 107th Congress.

Unprecedented?

As noted earlier, President Bush made two changes to the process of confirming federal judicial candidates through changing the role of the ABA and suggesting a timetable for different stages of the process. Since the Democrats did not respond favorably to the President’s prompting of a quicker process, it was only the ABA’s role that changed from these two proposals. While slowing down confirmation processes

55 regularly occurs near a presidential election, it has not been tradition to do it in the first two years. Democrats also went a step further than the Republicans had done in the

Senate by voting down two of Bush’s nominees. So the Democratic senators built upon the delay and techniques that the Republicans had progressed to during the Clinton presidency with divided government.

Congressional Record

Former Chairman of the Judiciary Committee Sen. Leahy laid out his view of the

Senate’s role of advice and consent with the following speech he made on Jan. 25, 2002 in the Senate.

The legacy of strife over the filling of judicial vacancies that we all must work to

overcome began in 1996, when months went by without the Republican Senate

acting on judicial nominations from a Democratic President… Our Founders

made very sure we, the people, had a voice in these appointments . This is a

democracy, not a regency. I will strive--whether we have a Democratic President

or a Republican President--to uphold the right, and not just the right, the duty of

the Senate, to fulfill its advise and consent role. It is one of the most important

roles this body has ever had because it is exclusively in this great Chamber, in this

great body. Senators really do not follow their oath of office if they do not uphold

that right and that privilege and that duty of advice and consent. I have heard the

distinguished Presiding Officer speak of the number of Presidents with whom he

has served. He very correctly has pointed out, we do not serve under a President,

we serve with a President. I have enormous respect for all Presidents I have

served with, Republicans and Democrats. They are a major part of our

56 Democratic framework. Whoever is President carries an awesome burden and

should be helped in carrying out that burden. But we carry an awesome burden on

advice and concept, as well. Let us try to bring the duties and rights and

obligations at one end of Pennsylvania Avenue closer to the duties and rights and

obligations at the other end of Pennsylvania Avenue and see how we might work

together.clvii

In his view, the Senate was serving with the President and needed to take their role of advice and consent very seriously. Again this perspective echoes the words of

Republican Senators during the Clinton presidency.

Analysis

These years are being compared with Clinton’s last six years in office, when he was working with a divided government. President Bush’s first two years with divided government came at a time when the partisanship of judicial confirmation politics appeared to be peaking. Bush made it clear that he was going to stand behind his nominees and even brought the confirmation process into public view in making it a campaign issue in 2002. During the 2002 campaigns, Republicans running for the Senate highlighted how Democrats were blocking Bush’s judicial nominations in the Senate.

Bush prioritized his nominees more than Clinton did, but perhaps that was because the

Senate was evenly divided and he thought that he had a better chance than Clinton of getting his nominees through when the Republicans had a strong majority. So President

Bush did not back down from his nominees at all, whereas President Clinton did.

During the Clinton years, Democrats were accusing Republicans of slowing down the process down, which was very similar to what the Republicans were saying

57 about Democrats in Bush’s first two years. Once the tables had turned, I think both sides realized that in order to make any progress for their party, they would need to argue the same way as their opposing party had done just a few years before. The political objectives at the time demanded it.

The Democrats went a step further than the Republicans had done in voting down

Ronnie White on the floor of the Senate. Democrats voted down two of Bush’s nominees during his first two years. While it made the Republicans look bad in the Clinton presidency, Democrats saw that they could vote down these nominees without creating a precedent. They used the vote on the Senate floor only as their last weapon to use in stopping what they saw as conservative ideologues from making their way to the federal bench. But it is hard to substantiate just how conservative those nominees actually were.

Bush’s years with United Government

Structure and Process

The structure and process in the second half of Bush’s 1st term was conducted in a similar way to the first half of his 1st term.

Results

The Republicans regained control of the Senate with the election of 2002. During the 108th Congress, 13 appeals courts nominations were confirmed, but 19 were unconfirmed, with 10 not even having a hearing. So the confirmation rate was a low

40.6%. For district courts, 55 nominees were confirmed, yet 27 went unconfirmed with

17 not receiving a hearing. The confirmation rate was 67%.clviii

58 Sampling of Filibustered Judicial Nominees

A sampling of filibustered judicial nominees will help to show what the

“extreme” Bush nominees were like. Carolyn Kuhl graduated from Princeton

University with an undergraduate degree, before attending law school at Duke

University. She then began her legal career as a clerk for then Judge Anthony Kennedy on the U.S. Court of Appeals for the Ninth Circuit. Entering private law for several years, she next served as a Special Assistant to Attorney General William French Smith. From

1982 to 1985 she was Deputy Assistant Attorney General for the Civil Division of the

Department of Justice and eventually became Principal Deputy Solicitor General of the

U.S. under Solicitor General Charles Field. Most recently, she served as a trial judge on the Superior Court of the State of California for Los Angeles County.clix

On May 8, 2003 the Senate Judiciary Committee voted 10-9 along party lines to send her nomination to the full Senate. Her nomination was then filibustered and on

November 14, 2003, the Senate failed to end debate with a 53-43 vote, which fell 7 votes shy of the 6o needed to overcome the filibuster. She was ardently opposed by Sen. Diane

Feinstein, who said Carolyn Kuhl had “an extensive record, both as an attorney in the

Reagan Administration and later in private practice, arguing for extreme positions and extreme changes in the law on the most divisive of social issues confronting this country.”clx Eventually, her nomination was withdrawn at the end of the congressional session.

Henry Saad practiced law privately from 1974-1994. He was originally nominated by George H. W. Bush and was left unconfirmed by the Democrat-controlled

Senate. He has been an adjunct professor at Wayne State University Law School and

59 University of Detroit Mercy School.clxi In 1994, Michigan Governor Engler appointed him to the Michigan Court of Appeals. Then he was elected to a full term on the court in

1996. In the Senate, he was voted out of committee by a 10-9 vote on June 17, 2004, but failed cloture vote on July 22, 2004 by 52-46.clxii Liberals also have opposed him because of his record. They do not like the fact that he is a member of the Federalist Society. Both of his home state senators (Democrats) were against him.

Politics

On the opening day of the legislative session of the 108th Congress on January 7,

2003, President Bush renominated all of the judgeship candidates whose names were returned to him unconfirmed by the 107th Congress. The Bush administration felt that all of the judicial nominees they made were entitled to a floor vote. Thus, the fact that the

Judiciary Committee voted down Charles Pickering and Pricilla Owens did not mean that their nominations should be withheld.clxiii Again, it was clear that President Bush was not going to back down from the nominations he had made.

The President’s approach to renomination and new nominations focused on attention on a procedural aspect of the Senate that could slow down or block his nominations. He looked at the blue slip process, through which home-state interests are protected. Under the custom of senatorial courtesy, presidents routinely consult home- state senators of both parties through the chair of the Judiciary Committee giving the home state senator a blue slip. Traditionally, “absent the return of the blue slip by both home-state senators, a hearing on the nominee would not be scheduled, thereby giving all home-state senators a meaningful potential to delay or obstruct a nomination while serving, at the same time, to induce the president to consult on nominations, even across

60 party lines.”clxiv Both Clinton and Bush used the blue slip process. The Bush administration considered changing the blue slip process in order to take away Democratic senators ability to slow down the process when a nominee is from their home state. But the

Republicans did not alter the system.

Democrats in the Senate started using the filibuster as a tool to stop some of

Bush’s nominees. They prevented floor votes on the nominations of several Bush’s nominees through the use of a filibuster.clxv Republicans have charged that this makes the

Democrats obstructionists, while the Democrats respond by saying their record is infinitely better than the Republicans’ under Clinton. To understand this problem, it is important to note that with Republican control of the Senate, President Bush’s nominees received hearings and votes by the Republican-controlled Senate Judiciary Committee, and those nominees were then sent to the floor of the Senate. So the only place

Democrats could stop Bush’s nominees were informally through the blue slip process or on the floor on the Senate. But that does not mean that it is good for democracy that the

Democrats are using the filibuster and making Republicans obtain 60 votes (a supermajority) in the Senate to overcome these filibusters.clxvi

Seemingly in response to the filibusters from the Democrats, President Bush made two recess appointments during the 108th Congress.clxvii First, he invoked his recess appointment power for Charles Pickering on Jan. 16, 2004 to the 5th Circuit. It was significant because the Senate Judiciary Committee in the 107th Congress rejected

Pickering. Second, on February 20, 2004, William Pryor was given a recess appointment to the 11th Circuit. Historically, presidents have given recess appointments for more than

300 judges, with the majority of them going on to win confirmation and lifetime seats.

61 Clinton also used this technique with Roger Gregory, whom President Bush later re- nominated and the Senate confirmed.clxviii Therefore, President Bush’s use of recess appointments accords with what many other presidents have done.

Unprecedented?

What was clearly unprecedented in the 108th Congress was the extent to which a minority party in the Senate was able to affect the majority party’s nominees. Using the filibuster against Bush’s nominees, Democrats in the 108th Congress were far surpassing the techniques the Republicans used to stop Clinton’s nominees in the 103rd Congress.

The Democrats were acting as if they had a majority throughout the 108th Congress, when they were the minority party, albeit only by a few Senators. So what the Republicans did in the last 6 years of the Clinton presidency is not comparable with what the Democrats did in the 108th Congress. The Democrats changed the rules of the game and said that minority parties could be major players in the judicial confirmation process.

It was also essentially unprecedented to even use a filibuster to stop a judicial nomination. Sheldon Goldman, a political science professor at the University of

Massachusetts at Amherst and the author of a book on the judicial selection process, has said “the unprecedented use of the filibuster to prevent confirmation during the 108th

Congress…has colored the current debate on the confirmation process in crisis hues.”clxix

So its unprecedented use has caused many people to view the process as a crisis.

Democrats knew they were crossing a new threshold in the judicial nomination wars when they filibustered appeals court nominee Miguel A. Estrada.clxx Some

Democrats were even hesitant because only once in history had a minority party (with small majority party support) in the Senate used the filibuster to block a judicial nominee.

62 That was 30 years ago, when an associate justice of the Supreme Court, Abe Fortas, had a troubled financial background, but was nominated to chief justice in 1968. Yet

Democrats argue that the filibuster is in response to the White House’s unprecedented effort to put conservatives on the federal bench.clxxi For instance, Sen. Feingold claimed,

there are a number of circuits in this country that are extremely unbalanced

ideologically, and the nominations made by President Bush seem to be designed

to exacerbate that imbalance. It is entirely reasonable--indeed, our constitutional

role demands--that we examine the records of individuals chosen for the circuit

courts very carefully before we approve their nominations.clxxii

Thus, Democrats were saying they were only targeting nominees they considered to be extreme. However, Democrats have blocked 10 nominees through the use of filibusters.clxxiii Either there were a lot of extreme nominees or the Democrats just wanted to slow down Bush’s progress in appointments. Also, it is hard to substantiate that these nominees were actually extreme. Based upon the information of Bush’s appointees in the

107th Congress, they had more past party activism than Clinton’s appointees, but their percentage of that activism was lower than Carter, Reagan and Bush (41). Therefore, it is hard to argue that Bush’s nominees are so extreme that they had to be filibustered.

Since the Clinton administration, both parties have used procedural maneuvers with an increasingly greater frequency to fight nominations. “With each change in power, we’ve seen an escalation of the tactics,” said Nancy Scherer, who is a professor studying judicial confirmation at the University of Miami.clxxiv Another professor who studies judicial confirmation, Elliot Slotnick of Ohio State University, thinks that this is not yet a crisis because the filibuster has been used sparingly. “These are not like Scud missiles;

63 they’re more like smart bombs. When that changes, you’ve got a problem.”clxxv Whether or not it is a common procedure, it is still a tool that the minority party had not used for lower federal judicial nominees prior to 2003.

Democrats have been bitterly complaining that this is similar to the way

Republicans upheld Clinton’s nominees in their end result. Then, nominees “opposed by

Republicans were disposed of quietly, without contentious votes in the Judiciary

Committee or on the Senate floor.”clxxvi So holding up nominees in the Judiciary

Committee might have been less public, and to some a more civilized, way of blocking the nominations. But Democrats note that with both strategies, the nominee does not make it to the bench.

The Bush administration is continuing to pick nominees in the same way for federal judgeships. Slotnick, has observed that,

if the Clinton administration ran into opposition, they tended to fold. It wasn’t

worth pursuing one judge at the expense of other judges going forward. This

administration (Bush) has a greater commitment to which they decide to choose,

and once they choose them, they’re sticking to them.clxxvii

So Slotnick is noting a clear difference between Clinton and Bush and that is how they reacted to opposition to their nominees being blocked. President Bush showed no signs of giving up on the type of nominees he was sending either. He renominated the judges who were not approved during the 107th Congress for the 108th Congress.

The Filibuster

An historical look at filibusters is needed to understand the importance of their current use in the Senate. They were meant to be a weapon for the minority to use to

64 defend its rights in having a practical effect on legislation in Congress.clxxviii In order to break a filibuster, 60 votes are needed; therefore, there is a premium on consensus building. Senators need to make sure their bills will win broad support. Similarly, a president needs to pick “judicial nominees moderate enough to advance his policy goals without polarizing lawmakers.”clxxix Since 1980, neither party has had a filibuster-proof majority in the Senate.

For decades, filibusters were rare and rarely failed, except for the biggest national issues, as when Southerners tried to defeat civil rights legislation in the 1950’s and early

1960’s.clxxx That trend of rarely using the filibuster began to change in the 1970’s, when then-Majority Leader Mike Mansfield, a Montana Democrat, and Majority Whip Robert

Byrd, the West Virginia Democrat, began the practice of having more than one bill pending on the floor at the same time. Prior to that, when only one bill was under consideration at a given time, a filibuster would stop all business dead in its tracks. But now, with two measures moving at once, the leadership can set aside the controversial bill and work on the other one. The sidetracked bill can remain in legislative limbo, yet it does not tie the Senate in knots and other business can still go forward. Hence, with the consequences much less severe now, filibusters are used much more frequently, against routine bills or against routine judicial candidates if the minority party so chooses. So filibusters have changed a lot in the past 50 years, from being an extreme measure that stopped all business and was only used on very controversial issues to now being a much more regularly used procedural tool and able to be used against partisan, but not extreme judicial nominations.

65 Three senators discussed the question of whether to use a filibuster during the

Clinton presidency. “I would not want to have to file cloture on Federal judges. I think it would be a bad practice if we began to have filibusters on Federal judicial nominations , requiring only 41 votes to defeat a judicial nomination. I guess that has been done in the past but not recently, not since I have been majority leader.”clxxxi – Sen. Lott (R)

“I have heard rumors that some on the Republican side planned to filibuster this nomination. I cannot recall a judicial nomination being successfully filibustered.”clxxxii –

Sen. Leahy (D)

“Free and full debate over judicial nominations is healthy. The Constitution is clear that only individuals acceptable to both the President and the Senate should be confirmed.

The President and the Senate do not always agree. But we should resolve these disagreements by voting on these nominees--yes or no.”clxxxiii Sen. Kennedy (D)

These views indicate that members of either party are willing to use whatever tools they feel are available to them, but it was the Democrats who first started using the filibuster to block candidates.

Congressional Record

The Congressional Record provides some insight into the partisan politics that were being waged throughout the judicial confirmation process of the 108th Congress.

Democratic Sen. Leahy’s language shows the partisanship of judicial confirmation politics. He blames his opposition party, the Republicans, in particular the White House in the following parts taken from one of his speeches on the floor of the Senate:

The biggest problem in the judicial nominations process is not with the Senate but

with the White House. The judicial nominations process begins with the

66 President, and President Bush has chosen to divide the Senate and the American

people with his judicial nominations, instead of to unite us. The administration is

intent on undermining the independence of the federal judiciary and on making it

a clone of the Republican Party. The President and his aides have shown the same

unilateralism and arrogance to the Senate in their handling of judicial nominations

that they have shown in so many other important policy areas.clxxxiv

This quotation demonstrates the accusations that have been wages back and forth between the two political parties.

Many Republicans just asked for an up or down vote on the Senate floor, rather than having Bush’s nominees be filibustered. Sen. Orrin Hatch reasoned,

Like every other Senator, I took an oath to defend and support the Constitution.

Every Senator has his or her view on how that responsibility is to be exercised

with respect to acting on judicial nominees. In my view, the Constitution requires

the Senate provide its advice and consent regarding the judicial nominees.

Fulfilling my oath means I have a stake in seeing that happen. As chairman of the

Judiciary Committee, I have a special role in working with the leadership in

seeing the nominees, once reported from the committee, are brought up for floor

action. Vote up or down, but just vote. Every judicial nominee who reaches the

Senate floor is entitled to an up-or-down vote.clxxxv

Sen. Hatch, who also worked with the Clinton Administration during his presidency, was now seeking to encourage a vote on the Senate floor for every nominee.

Sen. Ensign (R-NV) was also fed up with the filibusters from the Democrats. He proposed this on the floor of the Senate:

67 I make this appeal to my colleagues: This nonsense going on with filibustering

circuit court judges needs to stop. I respect the fact that Senators want complete

debate. We should have full debate on judges. But once they have their full

debate, their complete investigation, questions are asked and answered, then we

need an up-or-down vote, straight up-or-down vote. There is no place in the

judicial nomination process for filibustering. If we do not correct this problem,

and fix this broken process the future our judicial system will be hurt and it will

be a great disservice to all Americans.clxxxvi

Therefore, it is clear that Republicans were arguing for an up or down vote on Bush’s nominees as a tactic to get more of his nominations through.

Analysis

Much of the analysis of judicial confirmation politics during the 108th Congress has varied based upon which political party a person is in. For instance, the Republican C.

Boyden Gray, White House counsel to the first President Bush, currently chairman of the

Committee for Justice, described the process in the following way:

Since the beginning of George W. Bush’s tenure in the White House, liberals have

waged an unprecedented campaign to block, delay, and besmirch his judicial

nominees. The tone was set when the left smeared Charles Pickering-a federal

judge, a former president of the Southern Baptist Convention, and a longtime

proponent of racial reconciliation in the New South- as a racist, and blocked his

nomination… Never before had the filibuster been used to block a judicial

nominee with majority support.clxxxvii

68 Gray found a leaked Democratic memo, which revealed that Estrada was targeted because “he is Latino, and the White House seems to be grooming him for a Supreme

Court appointment…we can’t make the same mistake we made with Clarence

Thomas.”clxxxviii

Democrats have just argued that Bush has nominated so many conservatives ideologues that they have no choice, but to filibuster these extreme candidates. For example, the Democratic National Committee has a website entitled “Bush Nominates

Right Wing Extremists.”clxxxix So it is clear that both parties are using political rhetoric to gain the upper hand in the process.

With such partisan politics, it is hard to objectively analyze the judicial confirmation process. However, I think that the use of the filibuster to block President

Bush’s nominees is an extreme measure. This step taken by itself appears to be the largest change in judicial confirmation politics over the past two presidencies. That being said, it was only one step. Even though the Democrats took it one step further, it could be argued that Republicans could have eventually used the filibuster if they were in the same situation as the Democrats currently are. Therefore, the Democrats took the partisan politics one step further.

Explanation of contentious judicial debate

The process has become so politicized during the last two presidencies. Assistant

Attorney General Eleanor Dean Acheson, who was responsible for judicial selection within the Justice Department, explained the her view of the politicized process:

The process has been wildly disserved by this idea that this is a huge ideological

battle for the courts and…there is no middle ground and, somehow, whatever else

69 anybody is, they are primarily and most importantly, for judicial selection

somewhere on this ideological axis. And I think that concept…and the practicing

of it for the last twenty years has been the single most undermining factor of the

judiciary. We have done huge damage and the higher up it goes the greater

damage we do.cxc

I think that she is right on in her thinking. Both political parties are being disserved by their desire to place their ideologues on the courts, and also to prevent any opposition ideologues from being appointed.

There has also been a natural progression of a changing judicial confirmation process as the President and Senate compete for power. Since President Jimmy Carter, presidents have been making significant changes to the process. The Senate usually reacts to their changes, and often in a political and partisan way. When the President has the upper hand, the Senate feels like it needs to balance the power and ensure their advice and consent is exerted.

Note the progression that has been made within the past two administrations.

When President Clinton came into office, he started appointing a record number of non- traditional judges, most of whom were Democrats. Robert Bork’s failed nomination for the Supreme Court certainly was also weighing heavy on the minds of the Republicans in the Senate when they regained a majority in the Senate in 1994. So the Republicans in the

Senate took the politics one step further through delaying the confirmation process for

Clinton’s nominees. They also took another step forward in voting down Ronnie White on the floor of the Senate in such a partisan way. When President Bush took office in

2001, he started appointing some conservative judges. The Democrats in the Senate

70 reacted by taking the process one step further through giving him problems during the

107th Congress. When the Democrats lost control of the Senate in 2002, they took the largest step of the process through using the filibuster on several occasions to block

Bush’s nominees. Therefore, competition between branches of government and also political parties has exasperated the problem.

Conclusion

The lower federal judicial confirmation process has changed in several ways over the past two Administrations. Both Presidents and both political parties are partly to blame for the progression they have taken from the historical way that judges were confirmed. Yet because the Senate’s role of advice and consent was not clearly defined, the way federal judges were confirmed has been ever changing.

President Clinton did not make appointing lower federal judges a very high priority, especially after his impeachment. Yet his presidency saw some changes to the way federal judges were confirmed. He experienced great success in his years with united government. But when he encountered a Republican held Senate in the 104th, 105th, and

106th Congresses, delay and partisanship affected his judicial nominations.

President Bush placed a much greater priority on his judicial nominations, which can be seen from the way he reacted to opposition to his nominees. They were blocked both under divided and united government. He did not back down from his choices as nominees and in the 108th Congress renominated several people who were given back to him at the end of the 107th Congress. The Democrats made the largest change to the politics of the process through filibustering several of Bush’s nominees.

71 But filibusters have changed a lot in the past 50 years, from being an extreme measure that stopped all business and was only used on very controversial issues to now being a much more regularly used procedural tool and able to be used against partisan, but not extreme judicial nominations. So taken within context, the use of the filibuster by the Democrats does not constitute a crisis or breakdown of the process.

It is important to realize that confirmation politics are ever changing and the norms of how things are done have been altered a lot since the Carter Administration.

The process has become an increasingly politically charged battleground for both political parties to unleash their weapons. The contentious debate will likely continue and the process will continue to change as the President and the Senate compete for the upper hand in the lower federal judicial confirmation process.

Future

For President Bush’s second term, I could see the process proceeded in one of two ways. One option would be for the Republican majority in the Senate to pass a filibuster rule change that would make votes on judicial nominations exempt from filibusters. This option would fundamentally change the judicial confirmation process, but it would allow a simple majority to confirm the President’s nominees.

A second option would be no change in rules, but with Democrats continuing to filibuster what they see as extreme nominees. Then when Republicans are in the minority and the president is a Democrat, they will do the same thing. The last time there was a supermajority was the 95Th Congress in 1976, which was soon after Watergate. Routinely, neither party has had a supermajority since the mid-1960’s. Basically in modern history it

72 has been rare for a party to have 60 members, which it would need to overcome a filibuster if the rules are not changed.

Either way it seems like it will be a new ballgame. It will narrow the president’s range of choices, regardless if his party is in power in the Senate. The process will continue to change as the President and the Senate compete for the upper hand in judicial confirmation politics.

73 Bibliography

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Binder, Sarah A. and Forrest Maltzman. 2002. “Senatorial Delay in Confirming Federal Judges, 1947-98.” American Journal of Political Science. 46:190-1999

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Goldman, Sheldon, and Elliot Slotnick. 2001. ‘Clinton’s Judges: Summing up the Legacy.’ Judicature. 84:228-254

Goldman, Sheldon, Elliot Slotnick, Gerald Gryski, Gary Zuk, and Sara Schiavoni. 2003. “W. Bush Remaking the Judiciary: Like Father Like Son?”Judicature 86:282- 309.

Gray, Boyden C. “Filibuster Politics.” Wall Street Journal, 13 October 2004. A16.

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74 Hartley, Roger E. and Lisa M. Holmes. 2002. “The Increasing Senate-Scrutiny of Lower Federal Court Nominees.” Political Science Quarterly. 117:259-278.

McCarty, Nolan and Rose Razaghian. “Advice and Consent: Senate Responses to Executive Branch Nominations 1885-1996.” American Journal of Political Science.

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75 Endnotes

i Sen. Kennedy, 105th Congress, January 28, 1998, Congressional Record Page: S85. ii Nixon, David C. and David L. Goss. “Constitutional Delay for Vacancies on the Circuit Courts of Appeals.” American Politics Research. Vol. 29. No. 3. 246-274. iii Ibid. iv Nolan McCarty and Rose Razaghian. “Advice and Consent: Senate Responses to Executive Branch Nominations 1885-1996.” American Journal of Political Science. October 1999. 43. 1122-1143. v Ibid. vi Garland W. Allison. “Delay in the Senate Confirmation of Federal Judicial Nominations.” Judicature. July-August 1996 80. 8-15. vii Ibid. viii Supra 32. ix http://www.usdoj.gov/olp/judicialnominations.htm x Gerhardt, Michael J. 1992. The Federal Appointment Process: A Constitutional and Historical Analysis. Durham, NC: Duke University Press. Page 18. xi Ibid. xii Ibid. xiii Ibid., 16-18, 22 xiv Ibid., 28 xv Goldman, Sheldon. 1997. Picking Federal Justices. New Haven, CT: Yale University Press. P. 7 xvi Supra 3, p. 41 xvii Ibid. xviii Ibid. xix Rutkus, Denis S. and Mitchel A. Sollenberger. “U.S. Circuuit and District Court Nominations by President George W. Bush During the 107th and 108th Congresses.” Congressional Research Service. 10 January 2004. CRS Report for Congress Order Code RL31868. xx Supra 8, 7 xxi Ibid. xxii Goldman, Sheldon, Elliot Slotnick, Gerard Gryski, and Gray Zuk. “Clinton’s Judges: Summing Up the Legacy.” Judicature. March-April 2001. Vol. 84. No. 5 P. 238 xxiii Supra 8, 8 xxiv Rutkus, Denis S. and Mitchel A. Sollenberger. “Judicial Nomination Statistics: U.S. District and Circuit Courts, 1977-2003. Congressional Research Service. 23 February 2004. CRS Report for Congress Order Code RL31635. xxv Ibid. xxvi Mason, Alpheus Thomas and Donald Grier Stephenson Jr. American Constitutional Law. Pearson Prentice Hall: Upper Saddle River, New Jersey. Fourteenth Edition. 2005. xxvii Supra 8, p. 6 xxviii Supra 3, p. 46 xxix Ibid., 50 xxx Ibid., 51-54

76 xxxi Ibid., 59 xxxii Ibid., 63 xxxiii Ibid., 65 xxxiv Ibid., 66-67 xxxv Ibid., 135 xxxvi Supra 3, 4 xxxvii Supra 8, 167-168 xxxviii Ibid., 81 xxxix Hartley, Roger E. and Lisa M. Holmes. 2002. “The Increasing Senate-Scrutiny of Lower Federal Court Nominees.” Political Science Quarterly. 117. P. 259-260 xl Ibid., 261 xli Ibid., 275 xlii Ibid., 276-277 xliii Ibid., 261 xliv Ibid. xlv Supra 3, 292. xlvi Supra 32, 262 xlvii Supra 3, 294 xlviii Goldman, Sheldon. 2004.“The Senate and Judicial Nominations.” Extensions. 4-12. P. 8 xlix Supra 10, 307 l Supra 32, p. 264 li Ibid. lii Goldman, Sheldon and Elliot Slotnick. 1997. ‘Clinton’s First Term Judiciary: Many Bridges to Cross.” Judicature. 80:254-273. P. 254 liii Ibid. liv Hatch, Orrin. 2002. Square Peg: Confessions of a Citizen Senator. New York: Basic Books. P. 122 lv Supra 52, 254-255 lvi Ibid. lvii Ibid. lviii Ibid., 267 lix Goldman, Sheldon and Elliot Slotnick. 1999. ‘Clinton’s Second Term Judiciary: Picking Judges Under Fire.’ Judicature. 82:264-284. P. 265 lx Supra 52, 256 lxi Ibid. lxii Ibid. lxiii Ibid. lxiv Ibid. lxv Supra15, 229 lxvi Ibid. lxvii Ibid. lxviii Ibid. lxix Supra 59, 267 lxx Ibid. 231

77 lxxi Supra 52, 258 lxxii Supra 15, 243 lxxiii Ibid. lxxiv Ibid. 245 lxxv Supra 59, 276 lxxvi Supra15, 245 lxxvii Supra 59, 275 lxxviii Ibid. 277 lxxix Supra 52, 245 lxxx Ibid. lxxxi Supra 59, 280 lxxxii Supra 15, 247 lxxxiii Supra 59, 282 lxxxiv Supra 15, 248 lxxxv Ibid. 235-236 lxxxvi http://judiciary.senate.gov/oldsite/72999ohp.htm lxxxvii Supra 15, 235 lxxxviii Ibid. More info- http://www.dcd.uscourts.gov/huvelle-bio.html lxxxix Ibid. 232 xc 14 Mar 86 (http://www.bartleby.com/63/65/1665.html). xci Supra 52, 257 xcii Supra 59, 267-268 xciii Supra 15, 247 xciv Ibid, 248 xcv Ibid. 232 xcvi (Sen. Leahy, Oct. 1, 1999, 106th Congress, Page: S11793. xcvii Supra 15, 234 xcviii Ibid. xcix Ibid. 235 c Ibid. 236 ci Ibid. cii Ibid. as qtd from an interview with Nan Aron, Director of the Alliance for Justice on Nov. 13, 2000 ciii Ibid. civ Ibid. 237 cv Supra 15, 237-238 cvi Ibid. 240 cvii Ibid. 241 cviii Ibid. 239 cix Sen. Lott, 104th Congress, August 1, 1996, Page: S9418 cx Sen. Hatch, 104th Congress, March 29, 1996, Page: S3180 cxi Sen. Leahy, 104th Congress, April 19, 1996, Page S3725 cxii Sen. Lott, 105th Congress, May 23, 1998, Page: S2400 cxiii Supra 3, 167 cxiv Supra 52, 258

78 cxv Supra 15, 234 cxvi Supra 59, 271-273 cxvii Supra 52, 271 cxviii Ibid. cxix Sen. Kennedy, Sept. 21, 1999, 106th Congress, Page: S11102. cxx Supra 3, 167-168 cxxi Supra 15, 254 cxxii Ibid. cxxiii Ibid. cxxiv Goldman, Sheldon, Elliot Slotnick, Gerald Gryski, Gary Zuk, and Sara Schiavoni. 2003. “W. Bush Remaking the Judiciary: Like Father Like Son?”Judicature 86:282-309. cxxv Ibid. 284 cxxvi Ibid. cxxvii Ibid. cxxviii Ibid. cxxix Ibid. 286-287 cxxx Ibid. 289 cxxxi Ibid. cxxxii Ibid. 291 cxxxiii Ibid. 292 cxxxiv Ibid. cxxxv Ibid. 293 cxxxvi American Bar Association. 1 cxxxvii Supra 124 cxxxviii Ibid. 303-305 cxxxix Ibid. cxl Ibid. 306 cxli Ibid. 307 cxlii Ibid. cxliii Ibid. 287, More Info- http://www.usdoj.gov/olp/eagan.htm cxliv Ibid. 289 cxlv (www.judicialselection.org). cxlvi (http://saveourcourts.civilrights.org/nominees/nominees/pickering.html). cxlvii (www.earthjustice.org). cxlviii Supra 124, 294 cxlix Ibid. 296 cl Ibid. cli Sen. Charles Schumer, Congressional Record, 107th Congress, Senate, Dec. 9, 2001, Page: S13671 clii Sen. Allard, May 9, 2002, 107th Congress, Page: S4106 cliii Supra 124, 296 cliv Ibid. 297-298 clv Ibid. 307 clvi Ibid. 308 clvii Sen. Leahy, Page S118-S120,107th Congress, Jan. 25, 2002

79 clviii Supra 41, 9 clix www.judicialselection.org clx Statement of Senator Dianne Feinstein (D-CA), Excerpt from Senate Judiciary Committee statement, May 8, 2003, http://www.earthjustice.org/policy/judicial/senators/kuhl_senators.html clxi www.judicialselection.org clxii www.idependentjudiciary.com clxiii Supra 124, 300 clxiv Ibid. 301 clxv Goldman, Sheldon. “Judicial Confirmation Crisis?” Jurist Online Symposium. 15 April 2004. 1. http://jurist.law.pitt.edu/forum/symposium-jc/goldman-printer.php clxvi Ibid. clxvii American Bar Association clxviii Ibid. clxix Supra 41, 4 clxx Dlouhy, Jennifer. “A New level of Acrimony in Parties’ War of Procedure.” CQ Weekly. 10 May 2003. Page 1078 clxxi Ibid. clxxii (Sen. Russell Feingold Congressional Record, 107th Congress, Senate Dec. 9, 2001, PageS13670) clxxiii Yang, John. “Fili-bluster; Has the Senate Marathon Seen Its Day?” Washington Post. 16 January 2005. B01. clxxiv Dlouhy, 1080 clxxv Ibid. 1083 clxxvi Ibid. clxxvii Ibid. 1084 clxxviii Yang, 2 clxxix Ibid. clxxx Ibid. clxxxi Sen. Lott, 106th Congress, Page: S11013, Sept. 16, 1999 clxxxii Sen. Leahy, 105th Congress, Oct. 14, 1998, Page: S12578 clxxxiii Sen. Kennedy, 105th Congress, January 28, 1998, Page: S85 clxxxiv Sen. Leahy, 108th Congress, July 7, 2004, Page: S7744 clxxxv Sen. Hatch, 108th Congress, May 10, 2004, Page: S5062 clxxxvi Sen. Ensign, 108th Congress, Page: S14086, Nov. 6, 2003 clxxxvii Gray, Boyden C. “Filibuster Politics.” Wall Street Journal, 13 October 2004. A16. clxxxviii Ibid. clxxxix “The Bush Record: One Extremist After Another.” Democratic National Committee. http://www.democrats.org/scotus/bushrecord.html cxc Supra 52, 256

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