Confirmation Gridlock: The Federal Judicial Appointments Process under Bill Clinton and George W. Bush
Maltese, John Anthony, Journal of Appellate Practice and Process
One of the most important consequences of the 2002 midterm congressional election will be its effect on federal judicial appointments. With the same political party controlling the White House and the Senate for the first time in eight years, President George W. Bush should have an easier time securing Senate confirmation of his federal judges than he did during his first two years in office. (1) As of January 1, 2003, the president had sixty vacancies to fill on the federal bench, including twenty-five on the courts of appeals. (2) There was also much speculation that Bush would have the opportunity to appoint at least one justice to the Supreme Court in 2003. (3) The last Supreme Court vacancy had occurred in 1994 when Harry Blackmun resigned and President Bill Clinton appointed Stephen Breyer. With more than eight years since that vacancy, the nation faced the longest stretch without an opening on the Supreme Court since 1823.
That stretch had been dominated by "divided government." Democrats controlled the White House while Republicans controlled both houses of Congress from 1995 through 2000. Republicans controlled the White House and the House of Representatives while Democrats controlled the Senate from 2001 through 2002. (4) Those eight years of all but continuous divided government were part of an emerging pattern. From 1969 through 2002, the same political party had controlled the White House and both houses of Congress for only six out of twenty-four years. (5) The same party controlled both the Senate and the White House for only twelve of those twenty-four. (6) Although divided government has been the norm since World War II, unified government had been the norm before that. (7) Divided control of the White House and the Senate has significant ramifications for judicial appointments because presidents only have the authority under the constitution to nominate individuals to fill those posts. Appointment only comes with the "advice and consent" of the Senate.
The recent period of divided government has been accompanied by a trend toward polarized politics in the United States. (8) Political scientists Jon Bond and Richard Fleisher have documented the decline in the number of "partisan nonconformists" in Congress (which they define as "moderate and cross-pressured Democrats and Republicans"). (9)
As a result, the parties in Congress have become more polarized, leading to a dramatic increase in partisan voting. The trend began in the House of Representatives after the 1982 midterm elections. The trend did not emerge in the Senate until some years later, but by the mid 1990s the Senate (as measured by party votes) was even more partisan than the House. (10) Another political scientist, Gary Jacobson, has noted that this has been accompanied by an increase in partisanship among the electorate: Party loyalty has increased, ticket splitting has decreased, and the ideological gap between members of the two parties has widened. (11) All of this has helped to increase the likelihood of confirmation battles over judicial nominees. It also produced "confirmation gridlock"--a dramatic slowdown of the confirmation process for federal judges--begun by the Republicans after President Clinton's re-election in 1996 and perpetuated by the Democrats in the first two years of the Bush administration.
Polarized politics led to confirmation battles and confirmation gridlock because judicial appointments were thought by participants in the process to have a potentially profound impact on public policy. White House aide Tom Charles Huston made this clear in a 1969 memorandum to President Richard Nixon. Huston noted that judicial nominations were
perhaps the least considered aspect of Presidential power.... In approaching the bench, it is necessary to remember that the decision as to who will make the decisions affects what decisions will be made. That is, the role the judiciary will play in different historical eras depends as much on the type of men who become judges as it does on the constitutional rules which appear to [guide them]. …