Breaking the Siege in the Judge War

John R. Lott is a resident scholar at the American Enterprise Institute in Washington, and Sonya D. Jones is a student at the Texas Tech University Law School.

It’s hard to find anyone these days who wouldn’t agree that the judicial nomination process is broken.

A few years ago, Democrats bitterly complained about the difficulties that President Clinton faced in confirming judges; now Republicans are complaining about the “inexcusable” delays faced by President Bush. In the wake of the 2000 election, some Democrats argued that an arguably illegitimate president such as Bush didn’t have the right to put his stamp on the courts. But Bush’s clear-cut win over Sen. John Kerry two weeks ago has not solved the problem.

Democrats now say that nothing has changed, and that they will continue filibustering to block judicial nominees whose politics, they believe, are out of the “mainstream.”

The tit-for-tat battle is spiraling out of control. On Friday, Senate Majority Leader Bill Frist, speaking for a newly expanded Republican majority, told the Federalist Society that the damage from judicial filibusters now “must be undone.” One option he discussed would gradually reduce the number of votes required to end a filibuster and to move a nominee to an up-or-down vote on the Senate floor.


Other Republican senators are pushing for an even more radical solution: the so-called nuclear option, in which Vice President Dick Cheney, the presiding officer of the Senate, would rule that filibusters against judicial nominees violate the separation of powers and are unconstitutional.

Democrats, for their part, are threatening a Senate shutdown if the rules change. But without some change, they risk even longer and more bitter confirmation fights when they retake the presidency. Unbelievably, the long judicial battles fought in the wake of Robert Bork’s watershed Supreme Court confirmation fight in 1987 pale in comparison to what occurs today.

Consider the following: The confirmation rate for presidential nominees to federal appeals courts has fallen steadily over the last 30 years, from 93% under President Carter to 89% under President Reagan, 78% under George H.W. Bush, 74% under Clinton and 69% under President Bush.

And the length of time it takes to confirm has gotten longer too. During the Carter and Reagan administrations, it took fewer than 70 days to confirm an appeals court judge. (About 33% of Reagan’s nominees were confirmed within a month.) Under Bush’s father, the length rose to 92 days, but Clinton saw the total soar to 230 days. Now, under Bush, it has risen again, to 263 days.

Even more startling is how long it takes to confirm nominees to the District of Columbia Appeals Court, the second most powerful federal court (and long considered a training ground for future Supreme Court justices). During the Carter, Reagan and first Bush administrations, it took fewer than 87 days on average to go from nomination to confirmation. Under Clinton, this grew to 242 days and under George W. Bush to 426 days -- nearly five times longer than under his father. Although almost 80% of Clinton’s nominees to this court were confirmed, Bush got only 33% confirmed.

During the Clinton administration, Democrats made explosive claims about the slowed-down confirmation process, alleging, according to the Washington Post, that “delays in approving Clinton’s minority and female judges showed racist and sexist tendencies in the Senate.”

USA Today quoted Democrats as saying that the “appointment system continues to favor white men significantly.”

Yet Bush’s African American nominees are taking even longer to confirm than Clinton’s did -- 151 days on average versus 141 -- and his female nominees are taking the same amount of time, 172 days on average.


Even as it has become increasingly difficult to confirm nominees, the quality of the nominees appears to be improving over time. The percentage of appeals court nominees graduating from a top 10 law school (as rated by U.S. News and World Report) or who served as clerks to a federal or state high court judge after graduation has risen consistently since the Reagan administration. Both Clinton’s nominees and George W. Bush’s scored better in terms of quality than those of either Reagan or George H.W. Bush -- but both still faced much longer delays.

Sen. Arlen Specter (R-Pa.) spent last week explaining his comment that President Bush will have problems appointing judges who oppose abortion, but the problem really goes deeper than that. Longer delays, lower confirmation rates and bitter partisan battles create backlogs as the vacancies build up. And they make it harder to find highly qualified nominees, because no one wants to turn his or her life upside down in return for a humiliating rejection.

Adopting new rules -- such as ending filibusters on judicial nominations to help tone down these bitter confirmation battles -- is only likely to occur when the same party controls the Senate and presidency, as it does now. But even today, the Democrats in the minority can still make such reform difficult. The question is whether they’ll be willing to give up their short-term benefits from blocking nominees for a system that better serves everyone’s interests in the long run.