It’s Time to Consider Ending Lifetime Judicial Appointments
The judicial confirmation process is a mess. There is no sign, anywhere, that it will get better. We are in the midst of a downward spiral, with growing frustrations and animosities on both sides that threaten to shatter whatever remaining comity exists in the Senate. I have wracked my brain to think of ways to alter this spiral. Standard issue reforms won’t work. It is time to consider something more radical. [IMGCAP(1)]
So what is the problem? First, there are difficulties rooted more broadly in a nomination and confirmation process that apply to executive nominations as well. All nominations have become clogged. For more than a decade, the time it takes to get federal judges nominated, the time it takes from nomination to Senate Judiciary Committee hearing and the time it takes from hearing to confirmation has been increasing. So too have the number of nominees who never get hearings, at least when the Senate is controlled by the opposite party of the president. These trends hold true for both district and appeals court slots. And they are worsening, through a combination of politics and process.
In the 107th Congress, President Bush’s first two years in which the Senate was mostly in the hands of the Democrats, 83 of 99 district court nominations were confirmed, along with only 17 of 32 circuit court nominations. This was a worse record by far than President Bill Clinton had in his first two years (but better by far than Clinton did in his last two years, when more than 40 judicial nominations were left hanging, some for years, and confirmations took a record average of more than 170 days). To be sure, there are always more delays in a president’s second term, and especially in his last two years — the temptation by the opposition party to “run out the clock” is great. But in this case, a number of the appeals court vacancies Bush moved to fill expeditiously had been empty for years because noncontroversial Clinton nominees were left twisting in the wind.
Republicans have fared better in the 108th Senate, with the gavel and leadership back in their hands, but they face repeated delays, holds and filibusters over a series of high- profile nominees to appeals courts, along with several district court nominees.
Along the way, the norms of the Senate as they relate to nomination and confirmation have been strained if not shredded. The long tradition of blue slips — in effect, vetoes by home-state Senators over district court nominations from their states that go back to 1917 — may be changed radically by frustrated Senate Republicans, who are particularly exorcised by holds on Michigan nominees to the 6th Circuit by Democratic Sens. Carl Levin and Debbie Stabenow. They are reacting to the fate of two Clinton nominees to the court who languished for years without the then-Republican Senate acting on them.
At the same time, some Senate Republicans continue to talk about doing away with Rule XXII, the cloture rule that requires 60 votes to end a filibuster, either by unilaterally declaring it unconstitutional for nominations or by moving to change the rule by majority vote at the beginning of the next Congress.
Strains in the process over the past decade have been greater because of the increasing partisan and ideological divisions between the parties and increasing animosity that probably goes back to the Supreme Court nomination of Robert Bork in 1987. Let’s not be naive here; the process before this era was not exactly pain-free, uncontroversial or a model of deliberation. Remember the fracas over Richard Nixon’s Supreme Court nominations of Clement Haynsworth and Harold Carswell — and the struggle before that over Lyndon Johnson’s nomination of Abe Fortas for chief justice?
But the struggles in the past tended to focus on the Supreme Court, the mother of all courts and the judicial policy-making body. Now, the bitterness has spilled over to a host of appeals court nominations and more than a few district court ones. And the tit-for-tat spiral has careened out of control.
Here is the real root of the problem: Federal courts in general have been expanding their power and role dramatically in the past couple of decades, through their own aggressive actions (liberal and conservative alike) and through the Congressional practice of passing the buck on many controversial issues or decisions, from abortion to clean air, for judicial determination.
Take the combustible combination of this reality and the virtual parity between the parties at all levels, then add lifetime appointments to the court, and you have the current unpleasant dynamic. A party with a four- or eight-year foothold on the White House can expand its influence over policy for decades more by adding like-minded policy-making jurists. A party with a foothold in the Senate will try to block that attempted hegemony as hard as it can.
The first President George Bush and Clinton actually nominated a large number of moderate centrists without sharp ideological edges; this was particularly true under Clinton, although the moderates were blocked along with the liberals to leave more vacancies for subsequent opportunities for a more amenable president. The current Bush has not been reluctant to nominate judges with sharp edges to fill those vacancies, and Senate Democrats have not hesitated to block by any means available some of those judges, although their focus has been more directly on ideological choices.
What can be done? There are Senators in the middle who have tried to stop the downward spiral. Sen. John Cornyn (R-Texas) has proposed some reforms that would take effect after the next presidential election, removing it from the current fray. Several Democrats have proposed that states employ nonpartisan, prestigious panels in their states, as Wisconsin now does, to choose a slate of nominees for appeals court positions from which the president could choose. Bush reluctantly went along with the idea for Wisconsin but has balked at extending it further, arguing that it undermines his constitutional power (not to mention that it enrages his party’s base).
At the moment, given the high stakes, the power in the judicial positions and the close party divisions, there is little likelihood of any constructive change for the foreseeable future. The resulting battles, as I have suggested, threaten to shred whatever civility and bipartisanship are left in Washington.
So here is another suggestion. It is time to reconsider Article III, Section I of the Constitution, which gives federal judges lifetime appointments. I know, I know, this is sacred territory. And the Framers both carefully considered judicial tenure and eloquently defended the term of good behavior for judges in Federalist 78 and a refusal to impose age limits for judges in Federalist 79. Permanent tenure was a bulwark against legislative and executive encroachment and improper influence and was an incentive to get the most fit and skilled individuals to leave lucrative practices to join the judiciary.
But lifetime tenure also skews the impact of each appointment, giving a president the temptation to pick young ideologues who will leverage the presidency for many decades thereafter. And lifetime tenure increases the stakes of each appointment, making tough battles tougher, encouraging the use of more hardball tactics and giving opposition parties more reasons to block as many appointments of a president as they can, to leave these lifetime plums open for a president of their own.
The arguments for lifetime tenure are not as powerful as they were back then. Nowadays, given that federal judicial pay is about the same as that of a second-year associate at a major law firm, lifetime tenure as a judge is not quite the same lure as it was in the 1780s. And while lifetime tenure does insulate judges from pressure from Congress, the president, attorney general or other officials, a long-term fixed appointment could easily provide comparable insulation.
My first cut at this would be to leave the Supreme Court as it is, with lifetime appointments; there are few enough appointments, and the system can easily handle the infrequent, knock-down, drag-out battles. But I would recommend a 12- or 15-year appointment for lower court federal judges.
These appointments would be nonrenewable, to take away the pressure on the judges in the last year or two of their terms to shift their opinions to conform to the desires of the president or his party. For relatively young people, it would be possible to serve and then build a capital base for children and grandchildren. For older people, it could be a capstone for a career. For presidents, appointments could be made without the temptation to go young to solidify your legacy for even longer.
Twelve or 15 years is still a very long time, much longer than a presidential term. Judicial nominations would still be major plums, and the rough-and-tumble surrounding them would not magically disappear. But the stakes in each nomination would be lowered enough, I believe, to reduce them to the typical level of partisan warfare instead of the extraordinary one that is the rule today. It is at least worth considering in the Senate Judiciary Committee, if only to divert the Members’ attention from their daily sniping, carping and screaming over the many lifetime nominations currently under siege.
Norman Ornstein is a resident scholar at the American Enterprise Institute.