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