The Law: Must the Senate Take a Floor Vote on a Presidential Judicial Nominee?

Article excerpt

On September 4, 2003, at the request of the nominee, President George W. Bush withdrew the nomination of Miguel Estrada for the U.S. Court of Appeals for the District of Columbia. At that time, the Estrada nomination had been in the Senate for over two years and had been the center of a heated partisan battle. Senate Republicans had repeatedly tried to hold a confirmation vote, and each time, Senate Democrats prevented one from occurring. The president, for his part, urged the Senate to vote on all of his judicial nominations. "The Senate has a constitutional responsibility to hold an up-or-down vote on all judicial nominees within a reasonable time," he continued, but "some Senate Democrats have abandoned that responsibility in favor of partisan obstructionist tactics" (Bush 2003, 320). This was a message that the president, along with his administration, had repeatedly made to the Senate. On May 6, 2003, for example, in a letter to Democratic Senator Charles Schumer of New York, White House Counsel Alberto Gonzales stated that the only way to fix "the broken judicial confirmation process is for the Senate to exercise its constitutional responsibility to vote up or down on judicial nominees within a reasonable time after nomination, no matter who is President or which party controls the Senate" (Gonzales 2003).

Well before the withdrawal of Estrada's nomination, President Bush had been pressing the Senate to establish procedures to enforce mandatory confirmation votes. He had proposed that the Senate establish a timetable to accomplish that objective. Issued on October 30, 2002, the plan called on every sitting federal judge "to notify the President of their intention to retire at least a year in advance" if at all possible. After the notification or vacancy announcement the president would have up to 180 days to submit a nomination to the Senate. The Senate Judiciary Committee would then have 90 days after receiving the nomination to hold a hearing. Finally, the Senate would be required to hold "an up-or-down floor vote on each nominee no later than 180 days after the nomination is submitted" (Bush 2002, 1892). Despite the Senate's reluctance to implement the timetable proposal and the delay in confirmation votes for some of his judicial nominees, the president has not been able to create a workable solution and has instead continued to press the Senate for mandatory up-or-down votes.

Democratic senators, however, countered by saying that the president was trying to stack the federal courts with judges that are "out-of-the-mainstream." Senator Schumer stated that efforts to prevent a vote on Estrada were warranted and constitutional. "To confirm Mr. Estrada when the White House treated the Constitutional process with such arrogance would have permanently changed the advise and consent clause and given the president carte blanche in choosing judges." In addition, Senator Schumer noted, "[t]he Founding Fathers did not want the Senate to be a rubber stamp" (Schumer 2003). Other Democratic senators support Schumer's justifications. Senator Edward Kennedy of Massachusetts stated that the withdrawal of Estrada "should serve as a wakeup call to the White House that it cannot simply expect the Senate to rubber stamp judicial nominees" (Kennedy 2003). Vermont Senator Patrick Leahy also felt that "[t]he Senate should continue to honor its constitutional responsibilities" and review fully every judicial nominee. "No President," Senator Leahy argued, "with or without the complicity of any current majority in the Senate, can be allowed to relegate the Senate to the role of rubber stamp" (Leahy 2003a). At present, most of the Democratic senators are blocking confirmation votes on five judicial nominees and have been able to effectively kill a sixth. (1)

Each side in this debate has presented arguments based on their own institutional and partisan interests. Indeed, the political ramifications in waging such a fight have apparent benefits for both sides. …