A Proposal: Codification by Statute of the Judicial Confirmation Process

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INTRODUCTION

There are few issues in modern day politics upon which there is little to no disagreement among members of Congress, political commentators, the media, and the public at large. One such issue relates to the confirmation of judges to the federal judiciary: the process of confirming judges in the United States Senate is broken and should be reformed.1

The flaws in the current system are varied, but each is ultimately linked to opposition to the judicial philosophy of the President's nominees. Because the Senate confirmation process is based on inconsistently-applied traditions and precedents rather than fixed procedural rules, a small minority of ideologically-driven senators have engaged in the unprecedented use of senatorial traditions, including the filibuster, to prevent up or down votes on judicial nominees - even those that enjoy the support of a majority of the Senate - leaving nominees sometimes languishing for years. Some senators, at the behest of partisan interest groups, distort and misrepresent the legal and political philosophies of nominees. Nominees to the federal bench face withering (and unwarranted) public attacks on their character and integrity. The same partisan interest groups spend millions of dollars on attack ads and investigations combing through nominees' lives in search of anything that might be used to discredit, attack, or defeat them.

As a result of this flawed process, vacancies on an already overburdened federal judiciary remain unfilled; political hostility within the Senate and between the President and Senate has reached a boiling point; nominees' lives and careers are left in limbo for months and years; the personal toll of sustained personal attacks often overwhelms both the nominees and their families; many nominees simply give up and withdraw, and other well-qualified prospective nominees simply decline to submit to such a degrading process.2 Unless steps are taken to correct the defects in the current system, the quality, integrity, independence, and diversity of the judiciary will be severely compromised. As described by one commentator, "[p]ast ideological scrutiny by senators of both parties has embittered many nominees, threatened judicial independence, discouraged individuals from enduring the confirmation process, and contributed to the vacancy crisis in the federal judiciary."3 In addition, "the boundary between law and politics has eroded substantially," and "[political necessity, not principled evaluation, is the currency in the confirmation process."4

There is little reason to believe the political battle over judicial nominations will decrease in the foreseeable future. Yet, the implementation of procedural changes may expedite the confirmation process and reduce the potential harm to the quality, integrity, independence, and diversity of the judiciary. Some propose reforming the filibuster rules in the Senate to prohibit the filibuster of judicial nominees.5 Such a proposal is fine as far as it goes, and it should be implemented if there is another filibuster of a judicial nominee. However, there are numerous other defects in the confirmation process unrelated to the filibuster, and a change to the filibuster rule can easily be reversed in the future when someone else's ox is being gored.

A more comprehensive and long-term procedural reform to the confirmation process would be a statute codifying the procedures for the confirmation of federal judges.6 The specific contours of a statutory confirmation process are obviously up to Congress to create. However, such a statute should, in our view, include specified time periods within which a nominee would receive a hearing before the Senate Judiciary Committee, a vote in Committee, and a debate and a vote on the Senate floor. The statute should also include procedures to extend the deadlines in extraordinary circumstances for reasonable but limited periods of time.

A statutory solution will provide a number of benefits to the confirmation process. …