Clinton Has the Power to Fill the Vacant Seats

President Clinton has an unacknowledged constitutional claim that can put an end to the Republican intransigence on judges. In a speech Saturday, he declared: “The Senate’s failure to act on my nominations, or even to give my nominees a hearing, represents the worst of partisan politics.” And he is right.

In the last year, the Senate confirmed only 18 judges, and 94 out of 845 federal judgeships are currently vacant. Senate Republicans have picked fights over exceptionally respected nominees like William Fletcher, a prominent law professor at Berkeley, and simply are refusing, Jesse Helms-style, even to hold hearing on others. On the vital U.S. Court of Appeals for the 2nd Circuit, which hears many of the country’s most important financial and criminal cases by virtue of its jurisdiction over New York, 31%--four out of 13--judgeships sit vacant. On the equally important 9th Circuit, which has jurisdiction over California and other Western states, 36%--10 of 28--seats are unfilled, a fact that led the court this year to cancel arguments in 600 cases.

When the president complains, he sounds like a Beltway public interest group leader, a man bereft of all power who can only nudge and persuade his few friends in the Senate. If we lived in a logical world, perhaps politicians would understand that putting the courts in the line of fire hurts everyone: courts administer justice by convicting criminals, scrutinizing complicated financial transactions with billions of dollars at stake, issuing pronouncements of law and so on. But in this cold political climate, the president can’t rely on logic and persuasion. He must stop acting on his belief that he doesn’t have any formal power over the Senate. Because he does.

Due to an obscure constitutional provision, Article II, Section 2, the president has the power to appoint federal judges on an interim basis during a Senate recess. (The Senate is scheduled to go into recess Nov. 14). He can appoint judges on this basis until the end of the next session of Congress, about one year. And he can extend those commissions during successive recesses.

Interim appointments have both temporary and long-term functions. In the short term, they can alleviate the pressures on an overburdened judiciary. But in the long term, such appointments also can act as a big stick to ensure that the Senate moves on permanent judicial appointments.

For the big stick to work, Clinton’s appointments should be quite liberal, but made in good faith. He should appoint individuals known for their fair-mindedness and judicial temperament, such as former public servants like Warren Christopher, old-guard liberal academics like Burke Marshall of Yale Law School and highly regarded retired state Supreme Court judges like former Connecticut Supreme Court Chief Judge Ellen Peters.

By naming people of this caliber and disposition, the president would change the political dynamic. If the Senate doesn’t act, it risks leaving in place, for possibly as long as three years, judges whom the president personally picked. (The 2nd and 9th Circuits, the only appellate courts to consider the issue, agree that interim judges can exercise the full federal power of judges under Article III.) It thereby would force the Senate to take seriously its constitutional obligation, in Article II, Section 2, to provide the president with “advice” about individuals qualified to serve on the federal bench and give the president power when the Senate fails to hold hearings or suggest names for appointments. (This latter fact no doubt accounts for much of the administration’s delay in sending up names.)

The president’s record on appointments so far has almost exclusively consisted of moderate, nonactivist judges. But it’s only natural that without the “advice” of the Senate, the president might turn toward a slightly different set of candidates. He might feel a bit freer to name the liberal equivalent of the many smart, conservative judges that President Reagan appointed. If the Senate doesn’t want to play ball, it should suffer the consequences.

Interim appointments aren’t some newfangled suggestion, but rather one with a long historical pedigree. More than 300 judges have been appointed on an interim basis. President Washington appointed three district judges between sessions of the 1st Congress and appointed Justice Johnson to the Supreme Court this way in 1791. More recently, President Kennedy nominated 22% of his federal judges in this manner. He used an interim appointment in part to get one of his greatest legacies, Thurgood Marshall, confirmed over racist Senate opposition.

The Constitution was written to ensure that no one senator or coterie of senators could hold the federal courts hostage. Article II’s interim appointment clause is a potent device to prevent such an event. Our nation’s courts, once the envy of the world, are faltering. The president should use everything in his arsenal to help them, including invoking Article II.