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Why We Must Confirm Judicial Nominees And Restore The Courts To Good Health

Thursday, May. 09, 2002

Now fast forward to a more adult context - that of the Senate Judiciary Committee, where another exciting game is being played non-stop. Since the late 1980's, the Committee--whether controlled by the Republicans or Democrats--has been playing a game of nomination keep-away. It's great fun for the players, but a disaster for the judiciary, and the rest of us.

Here is how the game is played, and why it must end.

The Rules of Nomination Keep-Away

First, every player must choose a political party to which he or she will be faithful, regardless of what's right. (It's just a game, so don't worry that this may be an unwholesome example for your children.)

Second, the President nominates qualified names for judicial appointments. (Unqualified candidates can be thrown out of the game at any time by any player.) In this game, hardly anyone wants to play the President, because after you make your nominations all you get to do is sit around and watch - which makes you look irrelevant, powerless, or both.

Third, the Chairman of the Senate Judiciary Committee (everyone fights to be this guy) puts the names on playing cards and makes two stacks: "nominees I don't mind," and "nominees who make me sick." "Nominees I don't mind" usually are in the party of the Chairman or have no paper trail. In contrast, "nominees who make me sick" are in the other party and have a paper trail of judicial decisions or law review articles.

The point of the game is to let the "nominees I don't mind" be confirmed, and ensure that consideration of the "nominees who make me sick" is delayed so long that the candidate is either no longer interested or dead. The other players can make their own playing cards, too, and do some swapping, but the Chairman's cards trump those of a mere committee member.

Now here comes the really fun part--the committee members in the majority, with help from the Chairman, get to make up the game as they go along. For example, they can decide to let everyone veto a nominee they particularly do not like from their own state - or even veto any nominee they do not like. Plus, they have unlimited time to come up with rules that will make it harder for the nominees they don't like to make it through.

Patrick Leahy: Winner and Still Champion at the Keep-Away Game

There are 89 vacancies in the federal courts. President Bush has nominated a total of 100 nominees, but the Committee has only confirmed 52, most of them on the federal district courts, rather than on the more powerful and influential appeals courts.

By contrast, at the same point in the Clinton Administration, the Committee had confirmed 66% of President Clinton's nominees. This shows that Senator Leahy is doing very well in the game as compared to Senator Biden. (Indeed one might say Leahy's performance puts Biden's to shame, except that the shame is really Leahy's.)

The judicial vacancy problem is worst in the courts of appeals, where only 9 of President Bush's 30 nominees have been confirmed (less than a 30% confirmation rate). Indeed, since President Bush first announced his initial judicial nominations a year ago, only 3 of the 11 appellate nominees have been confirmed. No hearings are scheduled for any others.

Some circuit courts of appeal have an egregious shortfall. The Sixth Circuit, for example, is half empty, with only 8 out of 16 judges. Sadly, this situation persists despite the fact that the understaffed courts' workload rose 5% last year.

Again, by contrast, at the same time in the Clinton Administration, 8 out of 14 appeals court vacancies had been filled - a 57% confirmation rate for Biden's Committee as compared to Leahy's 30%. The comparison once again shows Senator Leahy to be a champion nomination squelcher.

Why the Game, Though Fun For Players, Needs to End Now

The game has become so consuming that no player seems capable of making the game stop. There is no senatorial Mom to make them stop, so it's time for the Senators to stop the game themselves - even at the peak of their game. It's long past time for the kids to quit playing and to do their homework.

Unless you are a judge, a lawyer, or a litigant, you are probably not particularly concerned about the federal courts' problems, but the federal courts affect everyone. When their benches are not full, cases take far longer to conclude- which means deserving plaintiffs are put off from receiving the awards they deserve, and criminal trials are far from the "speedy" trials the Constitution requires. Meanwhile, an overly heavy caseload pushes more cases that perhaps should have gone to trial into settlement negotiations, because the parties get tired of waiting. In too many circumstances, justice delayed is justice denied.

There is another unintended consequence to this contentious, slow-moving process, despite all the fun in Committee. Judicial candidates are less likely to want to be judges.

Perhaps most important, no one wants to take on the work of two or three or four judges simply because the Senate Judiciary Committee cannot bring itself to stop playing the keep-away nominations game. It is already the case that a law firm partner may well sacrifice hundreds of thousands, or even millions, to become a judge; it is not fair to also ask the same person for every single hour of free time.

If life were different, the game could go on forever, but life is tough and we all must grow up someday. For the sake of the people, the courts, and justice, it is time for the Senate Judiciary Committee to shut down the nominations keep-away game, as fun as it has been, and to turn to its first and highest obligation: serving the needs of this country.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her email address is

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