The Senate as a BLACK HOLE

By Binder, Sarah A. | Brookings Review, Spring 2001 | Go to article overview

The Senate as a BLACK HOLE

Binder, Sarah A., Brookings Review

Lessons Learned from the Judicial Appointment Experience

For many a presidential appointee, the Senate must loom like an institutional black hole--an abyss that engulfs even the most luminous nominee. That impression is, in fact, mistaken. Most presidential nominees emerge from the Senate confirmation process and are eventually confirmed. But for many recent nominees, the experience has been long and unsettling.

Richard Paez, for example, a federal district court judge selected by President Clinton to fill a vacancy in 1996 on the pivotal Ninth Circuit Court of Appeals, had received the highest rating possible from the American Bar Association and been confirmed just two years earlier by a Democratic Senate for a seat on a federal district bench. Yet it took a Republican Senate more than four years to confirm his elevation to the appellate bench.

Is Paez's confirmation experience typical? Are recent delays in the confirmation process for judicial appointees due mostly to antagonisms between President Clinton and the Republican Senate? Or are broader institutional and electoral trends at work? If so, what can other presidential appointees learn from the experience of judicial nominees? Although judges' lifetime tenure on the federal bench and their broad policy jurisdiction distinguishes judicial nominees from all other appointees, no presidential appointee can afford to ignore the institutional and partisan hurdles that the Senate erects against presidential appointees seeking public service.

The Senate Record

Judge Paez's drawn-out confirmation, though extreme, reflects a broader trend under way in recent Congresses. Figure 1 shows how the confirmation process lengthened over the last half of the 20th century for all judicial nominees eventually confirmed by the Senate. Whereas the Senate took just one month to confirm the average judicial nominee during Ronald Reagan's first term, by the end of Clinton's second term the average wait had grown sixfold. At least one-third of Clinton's judicial nominees in the 105th Congress (1997-98) waited more than six months to be confirmed, with the longest wait for a confirmed nominee stretching nearly the entire length of the Congress.


The delays Clinton weathered in getting his nominees confirmed to the bench are not simply a reflection of his polarized relations with a conservative Republican Senate. During the mid-1980s a Democratic Senate took an average of nearly four months to confirm judicial nominees of Presidents Reagan and Bush. And during 1993 and 1994, a Democratic Senate averaged three months in confirming Clinton's nominees.

Indeed, although the politics of recent confirmations might be especially polarized, contentious relations between the Senate and the president go back a long way. During Dwight Eisenhower's last term, for example, it took the Democratic Senate led by Lyndon Johnson an average of four months--and sometimes as long as seven months--to confirm judicial nominees.

The Politics of Senate Delay

By any measure, the Senate's performance in dispensing advice and consent varied widely over the last half of the 20th century. How do we account for the uneven performance? Pundits assessing the Senate's treatment of Clinton's nominees typically point first to the poisoned relations between conservative Republicans and Clinton. It is often suggested that personal and political antagonisms between Clinton and hard-right conservatives led Republican senators to hold up unduly even the most highly qualified nominees. This may account for some of the delay, but hardly for all, since the trend toward lengthy confirmation proceedings was well under way before Clinton took office in 1993 and Republicans gained control of the Senate after the 1994 elections.

Others suggest that extreme delays encountered by judicial nominees in the 106th Congress owed much to the approaching presidential election. …

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The Senate as a BLACK HOLE


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