Judicial Nominations

  • February 15, 2016
    Guest Post

    by Neil J. Kinkopf, Professor of Law, Georgia State University College of Law; Professor Kinkopf is the faculty adviser for the ACS Student Chapter at GSU College of Law

    Starting almost immediately after the reports of Justice Scalia’s death, there has been controversy over whether President Obama can make a nomination to fill the vacancy and, if so, whether the Senate should consider a nomination given that it is a presidential election year.  President Obama has announced his intention to make a nomination and Senate Majority Leader Mitch McConnell has expressed his opposition, asserting that “[t]he American people should have a voice in the selection of their next Supreme Court justice.  Therefore, this vacancy should not be filled until we have a new president.”

    History clearly shows that President Obama is within his constitutional authority in making such a nomination.  History also supplies virtually no support for Senator McConnell’s plan to refuse to consider any Obama nomination.  I have collected the relevant precedents in four tables appended to the end of this post.

    The President’s nomination power.  The text of the Constitution grants the President the authority to nominate without qualification (except that his nomination does not blossom into an appointment without the advice and consent of the Senate followed by a commission that has been validly signed and sealed).  This would seem to indicate, though not expressly, that the President may exercise the power at any time while in office without exception.  Practice confirms this.  Presidents have made 22 nominations to fill Supreme Court vacancies during an election year.  In addition, Presidents have made 13 lame duck nominations – nominations made after an election had chosen a new President-elect but before that new President-Elect was inaugurated. 

    The Senate’s Advise and Consent Role.  “Delay, delay, delay.”  This is what presidential candidate Donald Trump urged the Senate to do during Saturday night’s debate.  Senator McConnell expressed the position more artfully, linking it to democratic principles.  Of course, the incumbent President was elected to make nominations and the incumbent Senate was elected in part to perform the constitutional “advise and consent” role.  Again, practice is instructive.  In none of the 36 instances cited above does it appear that the Senate refused to consider a presidential nomination on the grounds that no nomination should be made.  Indeed, the President’s election year nominee was confirmed in 11 of 22 cases.  (This success rate is skewed by President John Tyler, who nominated 3 individuals seven separate times during the 1840 election year.  None of the three was ever confirmed.  Discounting this episode, Presidents were successful in 11 of 15 cases.)   Of the 11 nominations made by lame duck Presidents, 7 were confirmed.  This should stand as powerful practical evidence that nominating and acting on a nomination in proximity to an upcoming presidential election does not offend the principle that the Supreme Court nominations should be accountable to the people. 

  • October 12, 2015
    Guest Post

    by Russell Wheeler, Visiting Fellow, Governance Studies, Brookings

    Federal courts are facing a toxic mix of judges creating vacancies at an usually high rate and some Republican senators exploiting Senate traditions to prevent nominations in their states. And the Senate Judiciary Committee and Republican Conference leadership have aggressively slowed down confirmation of those nominations that make it to the Senate.*

    The net effect is a sharp increase in vacant judgeships, putting additional strains on sitting judges, including those who have earned a right to a reduced workload. It mainly affects civil litigants, including small businesses, because of criminal cases’ statutory priority. In the final two years of the Reagan, Clinton and Bush two-term presidencies -- all with divided government -- vacancies decreased. That seems highly unlikely in these final two years of the Obama presidency.

    The October 5 confirmation of a district judge reawakened complaints that seven confirmations in 2015 compare poorly to the 33 confirmations at the same point in 2007, George W. Bush’s seventh year in office.

    In response, majority members of the Senate Judiciary Committee have said that the Senate, over the six-plus years of the Obama administration, has confirmed more judges than in the comparable period of the Bush administration.

    That’s true -- as of October 5, 310 Obama confirmations versus 265 Bush confirmations.

    They’ve also complained, as did Senator John Cornyn on the Senate floor on September 17 (repeating almost verbatim a July 30 floor statement by Judiciary Committee Chair Charles Grassley), that Senate Democrats confirmed 11 judges “at the end of last year.” (Actually, it was 12, on December 16, and most were unanimous.)

    Leaving 11 nominations for confirmation in 2015, said Cornyn, would have put the Senate “roughly . . . on pace for judicial nominations this year compared to 2007.”

    That’s only true with a tortured definition of “roughly on pace.” Eighteen is not “roughly” the same as 33. And those 33 confirmations in 2007 represent a 13.0 percent increase over the number on January 1, 2007.  Even moving 11 confirmations from 2014 to 2015 would have produced only a 9.9 percent increase over the January 1, 2015, number.

    More important, though, neither claim is particularly relevant. The ultimate purpose of the confirmation process is to fill vacant judgeships, not to create comparative confirmation scorecards.

  • September 29, 2015
    Guest Post

    by Senator Patrick Leahy (D-Vt.), Ranking Member, Senate Judiciary Committee

    Senate Republicans campaigned last year on the promise that they would govern responsibly if they won the majority. Unfortunately, rather than solving problems, the current Republican leadership has instead prioritized divisive issues that play only to their political base. As a result, Senate Republicans have virtually shut down the confirmation process for judicial nominees and the Federal bench is approaching a vacancy crisis. This should be alarming to anyone who cares about our justice system.

    In the nearly nine months since Republicans have been in the majority, judicial vacancies have almost doubled. And under Republican leadership, the Senate this year has confirmed just six judicial nominees, while dozens more await a confirmation vote. This is no way to respond to a looming vacancy crisis that will negatively impact Americans’ ability to seek justice in our courts.

    The Senate’s constitutional role of advice and consent should be above partisan politics. For much of the Senate’s history, members worked across the aisle to confirm judges.  In 2007, when I was Chairman of the Judiciary Committee, we had confirmed 29 judges nominated by President Bush at this same point in his presidency. And in the last two years of the Bush administration, we confirmed 68 nominees. We also moved President Bush’s pick for Attorney General, Michael Mukasey, in a prompt manner that took just 53 days from announcement to confirmation. 

    By any measure, Republicans have failed to move President Obama’s nominees in a responsible manner. The nomination of Attorney General Loretta Lynch, an impressive and highly qualified lawyer, languished on the floor for 56 days— longer than the five previous Attorney General nominees, combined.  From announcement to confirmation, Loretta Lynch’s nomination languished for 166 days because of Republican obstruction. When Republicans finally did call her up for a vote, they required—for the very first time in Senate history—a procedural vote to overcome a filibuster on her nomination before finally approving her confirmation. And by confirming just six of President Obama’s judicial nominees this year, Senate Republicans are on pace to have the worst confirmation record of any Senate in more than a half century.

  • July 10, 2015

    by Caroline Cox

    On Tuesday, the Senate confirmed Kara Farnandez Stoll with a 95-0 vote for a seat on the U.S. Court of Appeals for the Federal Circuit. The Senate Judiciary Committee approved her nomination in April, and her confirmation will make her the first minority woman to serve on the Federal Circuit.

     The Senate Judiciary Committee voted on three judicial nominees on Thursday. The Committee voted to send the nominations of Luis Felipe Restrepo, to serve on the U.S. Court of Appeals for the Third Circuit, Travis Randall McDonough, to serve on the U.S. District Court for the Eastern District of Tennessee, and Waverly D. Crenshaw, Jr., to serve on the U.S. District Court for the Middle District of Tennessee, to the Senate for confirmation votes.

    The large number of judicial vacancies continue to make it difficult for federal courts to adequately conduct business and deliver justice. Carl Tobias, the Williams Chair in Law at the University of Richmond, urges the Senate to fill the vacancies on the U.S. Court of Federal Claims at The Hill, and the blog for the Alliance for Justice examines how Texas has become the epicenter of the judicial vacancy crisis.

    There are currently 62 vacancies, and 27 are now considered judicial emergencies. There are 17 pending nominees. For more information see judicialnominations.org.

  • May 1, 2015

    by Caroline Cox

    On Thursday, President Obama announced five new judicial nominations: Todd Sunhwae Kim to be an Associate Judge of the District of Columbia Court of Appeals, and Julie Helene Becker, William Ward Nooter, Robert A. Salerno, and Steven M. Wellner to be Associate Judges of the Superior Court of the District of Columbia.  

    Senator Chuck Grassley, the chair of the Senate Judiciary Committee, refuses to admit his part in the delays on judicial nominees. As the Alliance for Justice explains, the senator has claimed that Republicans should take credit for nominees confirmed last congress, but has denied any responsibility for two months of Loretta Lynch’s confirmation wait that occurred in the same time period.

    More troubling still, the senator’s comments at the National Press Club on Monday indicate that he may wish to shut down judicial confirmations entirely. Senator Grassley stated, “Come July of 2015, probably they’ll be cut off and not approving any.”

    The blog of People for the American Way illustrates the problem with cutting off judicial confirmations in July. Not only could this move continue to swell the number of judicial vacancies, but it also comes at a time when the nominees that have presented are being considered at a glacial pace.

    There are currently 55 vacancies, and 23 are now considered judicial emergencies. There are 17 pending nominees. For more information see judicialnominations.org.