ACS Issue Brief Offers Suggestions to Reform Dysfunctional Judicial Nomination Process

January 28, 2013


ACS Issue Brief Offers Suggestions to Reform Dysfunctional Judicial Nomination Process


Jan. 28, 2013


Amanda Simon



Washington, D.C.  – The judicial nomination process remains deeply flawed with President Obama’s judicial nominees facing massive delays between nomination and confirmation, a new ACS Issue Brief reports. The Issue Brief, “Is Our Dysfunctional Process for Filling Judicial Vacancies an Insoluble Problem?,” compares the number of President Obama’s judicial confirmations with his predecessors and offers suggestions to change the process.

During President Obama’s first term, qualified judicial nominees with bipartisan support sat idly on the Senate’s Executive Calendar for months because of Republican refusal to consent to debate and vote on nominations. As Issue Brief notes, “The bigger difference in the Senate’s processing of Obama nominations is the time to confirmation for district judges. Clinton’s first-term district judges were confirmed, on average, 93 days after they were nominated, Bush’s in 155 days, a figure that soared to 223 for Obama.” 

The Issue Brief, by Russell Wheeler, a visiting fellow in Governance Studies for The Brookings Institution and president of the Governance Institute, points to the drawn-out process being an impediment to finding qualified candidates and urges that the process not become “an impediment that discourages good people from considering federal judicial service.”

Wheeler proceeds to discuss some of the immediate problems, including “finding ways to persuade senators in the minority that their long-term interest does not lie in opposing or foot dragging on nominees simply because they can and because they want payback.”

Wheeler offers several suggestions to ease the judicial nomination process, including near-term fixes such as the White House’s publicizing the status of its negotiations with senators over possible nominees.

Wheeler also suggests that “the administration might consider the tried-but-sometimes-true Washington institution of a task force—tripartite and bipartisan—to put on the table some modest changes that the next administration and the incoming 2017 Senate might consider—and that aspirants for those positions might debate in the 2016 elections.”

Wheeler’s Issue Brief is a part of a larger ACS project: “Toward a More Perfect Union: A Progressive Blueprint for the Second Term.” “Toward a More Perfect Union: A Progressive Blueprint for the Second Term” is a series of ACS Issue Briefs offering ideas and proposals that we hope the administration will consider in its second term to advance a vision consistent with the progressive themes President Obama raised in his second Inaugural Address. The series should also be useful for those in and outside the ACS network – to help inform and spark discussion and debate on an array of pressing public policy concerns. The series covers a wide range of issue areas, including immigration reform, campaign finance, climate change, criminal justice reform and judicial nominations.

Read the full Issue Brief here. To speak with the author, contact Amanda Simon at asimon@acslaw.orgor (202) 393-6187.

For more information on ACS’s work on judicial nominations, visit

The American Constitution Society for Law and Policy (ACS), founded in 2001 and one of the nation's leading progressive legal organizations, is a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals. For more information about the organization or to locate one of the more than 200 lawyer and law student chapters in 48 states, please visit