The Judicial Confirmation Crisis and the Clinton Presidency

Article excerpt

At a Senate Judiciary Committee business meeting on April 2, 1998, the chair of the committee, Senator Orrin Hatch (R-UT), announced that he had been asked and had decided "to hold over the judges until the next meeting." This provoked an immediate response from the ranking Democrat on the committee, Senator Patrick Leahy (D-VT), who observed that while it is the prerogative of the chair to hold the judges over, to do so would mean even more delay given the upcoming April recess. He then added pointedly, "I understand that your party has made a decision to stop judges or to slow them up as much as possible. I disagree with that.... I do not think it is responsible to hold up these judges." Senator Hatch responded that of the approximately eighty vacancies on the federal bench,

   we have 37 nominees ... some of whom have had some real difficulties....
   So over half the vacancies come as a result of not the committee's inaction
   but the White House. And we have been moving them regularly, and we have
   moved a lot out of this committee this year, and we will continue to do so.

At this point, Senator Joseph Biden (D-DE), the previous chair of the committee when the Senate was under Democratic Party control, chimed in: "Is there a reason why you are holding the judges over? I mean, you have a right to, but did you state a reason or you just feel like it?" Hatch replied, "I am just holding them over." Leahy interjected, "He just feels like it. It is like pulling the wings off a fly, you know, sometimes you feel like it." Hatch in response said,

   Well, I don't think these are justifiable comments because I think we have
   been moving regularly and we have been doing a lot, and we have had a lot
   on the calendar. Now I cannot control the floor, but I do have some say in
   this committee.

Interestingly, Senator Hatch eventually compromised that day, and the committee voted to favorably report four nominees for district court positions. One of the four was confirmed the next day--Ivan L. R. Lemelle to the eastern district of Louisiana. The other three had a much longer wait for confirmation--A. Howard Matz (central district of California) was confirmed on June 26 (eighty-five days after being approved by the committee); George Caram Steeh III and Arthur J. Tarnow (both to the eastern district of Michigan) were confirmed on May 13 (forty-one days after committee approval).

All this suggests a number of facets surrounding the confirmation of judges during the Clinton presidency, each of which deserves examination: (1) that the Republican-controlled Senate Judiciary Committee has considerably slowed down the confirmation process; (2) that the actions of the Republican Senate majority leader have considerably slowed down that process; and (3) that the Clinton Administration has failed to promptly nominate individuals to fill judicial vacancies, and that has contributed to the problem--the problem being unfilled judicial positions creating significant backlogs of cases in the federal courts that have seriously compromised the ability of the courts to administer justice.

Slowdown by the Senate Judiciary Committee?

To answer the question objectively whether there has been a slowdown by the Senate Judiciary Committee, we look at some statistics from (1) the 102nd Congress, when there was divided government (with Republican President Bush in his last two years and a Democratic Senate); (2) the 103rd Congress, when there was unified government (with Democratic President Clinton and a Democratic Senate); and (3) the 104th and 105th Congresses, with divided government once again (Democratic president, Republican Senate). The figures below differentiate lifetime nominations to the district courts from lifetime appointments to the courts of appeals of general jurisdiction. Note that all figures for the 105th Congress are as of August 30, 1998.

District Court Nominees

                                    102nd             103rd
                                  Congress          Congress

Number and percentage
 of nominees who
 received hearings             100/143 (69. …