Our broken judicial confirmation process and the need for filibuster reform.

• Author: Cornyn, John

To vote without debating is perilous, but to debate and never vote is imbecile.

--Senator Henry Cabot Lodge (1)

Filibustering originally referred to mercenary warfare intended to destabilize a government.

--Catherine Fisk & Erwin Chemerinsky (2)

The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great Government of the United States helpless and contemptible.

The remedy? There is but one remedy. The only remedy is that the rules of the Senate shall be so altered that it can act.

--President Woodrow Wilson (3)

Now is the perfect moment ... to get rid of an archaic rule that frustrates democracy and serves no useful purpose.

--The New York Times (4)

INTRODUCTION

On May 9, 2001, President George W. Bush nominated distinguished Washington attorney Miguel Estrada, Justice Priscilla Owen of the Texas Supreme Court, and nine other talented jurists to serve on the prestigious federal courts of appeals. (5) Senator Patrick Leahy, then and now the ranking Democrat on the Senate Judiciary Committee, attended the President's East Room ceremony announcing these nominees, and said afterward: "Had I not been encouraged, I would not have been here today.... I know them well enough that I would assume they'll go through all right." (6) Senator Leahy announced that "[w]e will submit [the nominees] to the [American Bar Association], so there could be peer review," (7) and the ABA responded by giving both Estrada and Owen its highest possible rating: unanimous well-qualified. (8)

Yet today, well over two years later, Estrada and Owen have not--to use Senator Leahy's words--"go[ne] through all right." (9) Quite the contrary: Although both Estrada and Owen enjoy the support of an enthusiastic bipartisan majority of Senators who have long been ready to schedule a vote to confirm them, to date neither has received an up-or-down vote on the floor of the United States Senate. Instead, a partisan minority of Senators has launched unprecedented filibusters to block their confirmation by preventing the Senate from even calling an up-or-down vote on their nominations. Those same tactics are now being used against Alabama Attorney General Bill Pryor, Mississippi federal judge Charles Pickering, California Supreme Court Justice Janice Rogers Brown, and California Superior Court Judge Carolyn Kuhl, and it is feared that others will meet the same fate when their nominations arrive on the Senate floor. (10) An historic and tragic step was taken when Estrada declared that enough is enough and asked President Bush to withdraw his nomination--the first judicial nominee in the history of our nation to be denied confirmation despite enjoying the support of a majority of the Senate. (11)

The judicial confirmation process is badly broken. I am certainly not alone in that view. Earlier this year, all ten freshman Senators declared, in a letter to Senate leadership, that "the judicial confirmation process is broken and needs to be fixed," and that "the United States Senate needs a fresh start." (12) And veteran senators from both parties have expressed similar sentiments. Senator Chuck Schumer of New York has written, for example, that "the judicial nomination and confirmation process [i]s broken and ... we have a duty to repair it." (13) Senator Dianne Feinstein of California has likewise concluded that the judicial selection process "is going in the wrong direction. The debate between the Senate and the Executive Branch over judicial candidates has become polarized and increasingly bitter." (14)

Outside observers of the Senate judicial confirmation crisis have come to the same conclusion. ABA President Alfred P. Carlton Jr. has concluded that, as the result of the Senate's broken confirmation process, "[t]here is a crisis in our federal judiciary, constituting a clear and present danger to the uniquely American foundation of our tripartite democracy--an independent judiciary." (15) Senior Clinton Justice Department official Walter Dellinger concluded this year that the confirmation process is "badly broken." (16) The Washington Post has described the process as "steadily degrading." (17) Even The New York Times editorial page--one of the nation's most hostile opponents of President Bush's judicial nominees--has recognized that "the judicial selection process is broken." (18)

If one were to ask ordinary American citizens how they think the judicial confirmation process should work, I am confident most would say something along these lines:

* Find the nation's top legal minds, hardest workers, and committed public servants. They can be found in every community, representing every race, religion, and sex.

* Make sure they are committed to the principle that judges interpret the law, not make the law. They should know the difference between behaving judicially and behaving politically.

* Give the Senate the time they need to review their records and vote on their confirmations. That may take perhaps a few months at most, longer in extraordinary cases. But in any event, once a majority of the Senate is finally ready to vote up or down on a judicial nomination, it should be allowed to do so.

* If the Senate approves a nomination, the President should commission the nominee quickly.

* If the Senate rejects a nomination, the President should either submit another nomination as soon as possible, or explain to the American people why the Senate was wrong to reject the nomination, and why they should elect a new Senate to confirm his judicial nominees. (19)

* But regardless of whether individual Senators support or reject a particular nominee, once a majority of the Senate is ready to act, it should be allowed to do so.

Yet for too long the Senate acted too slowly to vote on judicial nominations. Real solutions to the broken confirmation process are sorely needed. On July 4, 1997, the American Bar Association issued a report of its Commission on Separation of Powers and Judicial Independence. That report, entitled An Independent Judicial, recommended that "judicial vacancies be filled without delay." (20) According to the ABA's official stated policy, "[t]he ABA urges the President to nominate candidates for vacanct federal judicial positions promptly and urges the Senate to hear and vote on those nominations in an expeditious manner." (21) More recently, ABA President Carlton has recommended "expeditious nomination and confirmation." He explained:

As this page is being written, the spectacle of the Miguel Estrada 'filibuster' grinds on--a living testament to the inability of both sides to cooperatively fulfill the grave constitutional duty entrusted to them.... This is to say nothing of the secondary effect current intramural disputes will have on a legion of other nominees--all awaiting hearings or confirmation, many for months or even years at a time, having all put professional careers and private lives on hold. (22) He concluded that federal judicial nominees "need to be nominated and confirmed faster." (23)

Similarly, Chief Justice William Rehnquist has repeatedly reiterated the need for speedier consideration of judicial nominees by the United States Senate. In his 1997 Year-End Report on the Federal Judiciary, the Chief Justice urged that

the President should nominate candidates with reasonable promptness, and the Senate should act within a reasonable time to confirm or reject them.... The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down. (24) He repeated this same message in his 2001 (25) and 2002 (26) year-end reports. Yet a partisan minority of the Senate today stands directly opposed to the common sense, good government principles articulated by the ABA and the Chief Justice of the United States.

To be sure, some delay in the Senate's judicial confirmation process may be necessary from time to time. If, for whatever reason, a majority of Senators needs more time to determine whether a particular nominee deserves confirmation, a short delay may be appropriate. But delay is neither necessary nor appropriate once a majority of the Senate finally decides that it has conducted a sufficient investigation and is ready to vote on the nomination. From time to time, a minority of Senators might also have good cause for delay. But such delays should not be used to prevent a majority of Senators from ever voting to confirm a nominee. (27)

That is why the filibusters of judicial nominations have never been a part of Senate tradition before, and why its current usage is such an abomination: Simply put, filibusters are the most virulent form of unnecessary delay one can imagine in the Senate's exercise of the judicial confirmation power. Senator Feinstein is thus quite right when she says that the judicial selection process "is going in the wrong direction." (28)

Today, a bipartisan majority of the Senate has determined that it has in fact conducted an ample inquiry into the qualifications of judicial nominees like Estrada, Owen, Pryor, Pickering, Brown, and Kuhl and determined to its satisfaction the nominees' commitment to the principle that judges interpret the law and do not make the law. That bipartisan majority has long been ready to act, and ready to confirm. Yet a minority of Senators has hijacked the process and will not allow the majority to conduct the nation's business and to vote to fill judicial vacancies. I firmly believe that, once a majority of Senators has determined that it has conducted an adequately thorough investigation into a nominee's qualifications and fitness for judicial service, that majority should possess the power and authority to act and to confirm judicial nominees it finds acceptable, without further delay. (29)

This article contains four parts...