Confirmation gridlock: the federal judicial appointments process under Bill Clinton and George W. Bush.

• Author: Maltese, John Anthony

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]. (12) Huston therefore urged Nixon to set specific criteria for the types of judges to be nominated (a litmus test) in an effort to influence judicial policymaking. If the president "establishes his criteria and establishes his machinery for insuring that the criteria are met, the appointments will be his, in fact, as in theory." (13) A memo from Nixon's Chief Domestic Affairs Adviser, John Ehrlichman, that transmitted a copy of Huston's memo to the president said: "Huston's memorandum is well done and raises some interesting points." Underneath, Nixon added a handwritten note: "To [Deputy Attorney General Richard] Kleindienst: RN agrees. Have this analysis in mind when making judicial nominations." (14)

When the president and the Senate are controlled by the same political party and are in basic agreement about the direction that they believe public policy should take, it is relatively easy for the president to secure confirmation of his nominees. Thus, President Franklin Roosevelt achieved with little opposition a dramatic transformation of the Supreme Court that had significant policy consequences. Seven of his nine nominees were confirmed by voice vote. The remaining two--Hugo Black and William O. Douglas--were confirmed by votes of sixty-three to sixteen and sixty-two to four, respectively. (15) At the Supreme Court level, presidents have made thirty-three of their 149 nominations when the opposition party controlled the Senate. (16) Of the thirty-three nominations, only eighteen were successful--a success rate of 54.5 percent. (17) This compares with a success rate of almost ninety percent when the same party controls the White House and the Senate (102 successful nominations out of 114 nominations). (18)

It is not surprising, then, that the long stretch of divided government at the end of the twentieth-century led to what Stephen Carter has called a "confirmation mess." (19) Compounding the mess have been contentious public policy debates--a "cultural civil war," as reporter E.J. Dionne has put it, over some of the most divisive issues imaginable (with race and abortion at the forefront). (20) Race prompted senators to start asking how judicial nominees might vote in specific cases. The landmark Supreme Court ruling in Brown v. Board of Education (21) served as the catalyst. Conservative southern Democrats condemned the unanimous decision as an activist ruling that changed the meaning of the Civil War amendments to the constitution and invaded states' rights. It is probably no coincidence that only since 1955 has every Supreme Court nominee testified. (22) Before 1955, testimony by nominees was a rare phenomenon. No nominee testified until Harlan Fiske Stone in 1925 (although some earlier nominees, such as George Williams in 1873 and John Marshall Harlan in 1877, did communicate in writing to the committee). (23) Of the next eighteen nominees from Charles Evans Hughes in 1930 through Earl Warren in 1954, only three testified (William O. Douglas in 1939, Frank Murphy in 1940, and Robert Jackson in 1941). (24)

In the years after 1955, southern Democrats used their questioning of nominees to decry the Court's activism in Brown and to ask the nominees about their judicial philosophy. Sometimes the questioning was indirect, as when Sen. James O. Eastland of Mississippi, the chair of the Senate Judiciary Committee, asked William Brennan in 1957: "Do you think the Constitution of the United States could have one meaning this week and another meaning next week?" (25) The question clearly referred to Brown, which had overturned the "separate but equal" doctrine of Plessy v. Ferguson, (26) but did not directly name it. On the other hand, southern Democrats asked Potter Stewart very pointed questions about the case in 1959. After Stewart evaded South Carolina Senator Olin Johnston's query as to whether he was a "creative judge" or one who followed precedent, Senator John McClellan of Arkansas asked point blank: "Do you agree with the view, the reasoning and logic applied.., and the philosophy expressed by the Supreme Court in arriving in its decision in the case of Brown v. Board of Education on May 17, 1954?" (27)

Six years later, southern Democrats led the opposition to Lyndon Johnson's nomination of Thurgood Marshall, the first African American nominated to sit on the Court and the NAACP lawyer who had argued and won in Brown. Marshall's opponents used a variety tactics. Senator Sam Ervin of North Carolina accused Marshall of repudiating and ignoring the original intent of the fourteenth and fifteenth amendments. (28) Senator Strom Thurmond of South Carolina asked Marshall more than sixty complicated questions emphasizing facts about political figures from the 1860s, all designed to make Marshall look inept and hostile to original intent. (29) Chairman Eastland hinted that Marshall had Communist tendencies by noting that one of Marshall' s judicial opinions had cited a book by Herbert Aptheker whom Eastland alleged "had been for many years an avowed Communist and was the leading Communist theoretician in the United States." (30) Marshall was ultimately confirmed by a large margin (sixty-three to eleven), with all of the opposition coming from southern senators.

Part of Richard Nixon's southern strategy for winning the White House in the 1968 presidential election included a pledge to appoint strict constructionists to the Supreme Court. His success paved the way for Republican inroads into the south (Nixon won North and South Carolina, Tennessee, Virginia, and Florida in 1968). But the Senate, controlled by the opposition, defeated Nixon's first two attempts to appoint a southern strict constructionist to the bench: Clement Haynsworth in 1969 and G. Harrold Carswell in 1970. Both were defeated by a coalition of northern Democrats and moderate to liberal Republicans spurred on...