Advice and Consent during the Bush Years: The Politics of Confirming Federal Judges

Article excerpt

"The judicial appointments process has become needlessly acrimonious."1 So intoned Senate Republicans in 2009 - even as they reserved die right to filibuster any of President Barack Obama's judicial nominations deemed unacceptable to the Republican conference. "Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee."

Coming on the heels of an eight-year contentious battle between Democrats and Republicans over the Democrats' treatment of President George VV. Bush's nominations to the lower federal courts, the Republicans' warning reminds us of the intensely divisive character of judicial selection, characterized in the Bush years by senatorial foot-dragging, declining confirmation rates, and protestations by both political parties about the broken nature of advice and consent.

This article explores die politics of judicial selection, focusing on partisan, institutional, and temporal forces that shape the fate of presidential appointments to die federal trial and appellate courts. Putting the experiences of die Bush administration into historical perspective, it assesses patterns over the past 60 years, shows broad trends in the treatment of judicial nominees, and pinpoints developments that have fueled conflict over the makeup of the federal bench. It suggests that polarization of advice and consent worsened over die Bush years, but was broadly consistent with the deterioration of judicial selection over the past several decades.

For better or worse, federal judges in die United States are today asked to resolve some of the most important and contentious public policy issues. Although some hold onto the notion diat the federal judiciary is simply a neutral arbiter of complex legal questions, the justices and judges who serve on the Supreme Court and the lower federal bench are in fact crafters of public law. In recent years, for example, the Supreme Court has endorsed the constitutionality of school vouchers, struck down Washington, D.C.'s ban on hand guns, and, most famously, determined die outcome of the 2000 presidential election. The judiciary clearly is an active partner in the making of public policy.

As the breadth and salience of federal court dockets has grown, the process of selecting federal judges has drawn increased attention. Judicial selection has been contentious at numerous junctures in American history, but seldom has it seemed more acrimonious and dysfunctional than in recent years. Fierce controversies such as the battles to confirm Robert Bork and Clarence Thomas to the Supreme Court are emblematic of an intensely divisive political climate in Washington. Alongside these highprofile disputes have been scores of less conspicuous confirmation cases held hostage in the Senate, resulting in declining confirmation rates and unprecedented delays in filling federal judgeships. At times over the past few years, over 10 percent of the federal bench has sat vacant. Although Senate parties reach periodic agreements to release their hostages, conflict over judicial selection continues to rise. All the while, the caseload of the federal judiciary is expanding to an exceptionally heavy level.

Competing accounts

As the media has paid more attention to die difficulties faced by judicial nominees in securing confirmation, political science and legal scholars have offered diverging approaches to understanding recent conflict over die selection of federal judges. Legal scholars have questioned die growing salience of ideology in confirmation hearings, while judicial scholars have examined how presidential ambitions shape die selection of judges and how interest groups succeed in derailing nominees they oppose.2 Such studies provide excellent but partial portraits of the forces shaping the contemporary politics of advice and consent.

To the extent that scholars have attempted to provide a broader explanation of the crisis in judicial selection, two alternative accounts have been proposed - neither of which fully captures the political and institutional dynamics that underlie contemporary advice and consent. …