Over the past decade, the nomination and confirmation process has become increasingly contentious, leading to allegations by each political party that the other party has undermined the integrity of the process by holding it hostage to partisan politics.

Despite the heated rhetoric during the 107th and 108th Congress, the Senate confirmed 204 nominees, leaving only 28 vacancies by the time the 108 th Congress adjourned.

Political discord over the nomination and confirmation process almost caused a major showdown in the Senate during the 1st Session of 109th Congress.

Describing the 10 filibusters (PDF) of judicial nominees during the 108th Congress as intolerable and a formula for tyranny by the minority, Senate Majority Leader Bill Frist (R-TN) early in the session suggested that Republicans might resort to an unusual parliamentary maneuver, dubbed the "nuclear option," to thwart such filibusters. In response, Senate Democratic leader Harry Reid (D-NV) said, "If they, for whatever reason, decide to do this, it's not only wrong, they will rue day they did it, because we will do whatever we can do to strike back."

In March 2005, discord over the judicial nomination and confirmation process intensified, fueled by speculation that Chief Justice William H. Rehnquist soon would step down from the Supreme Court. On March 15, Senator Reid sent the Senator Majority leader a letter objecting to use of the nuclear option and warning that Democrats were prepared to halt business except for essential operations involving the military and national defense. Senator Frist responded on March 17 with a letter urging reform of the process as a way to halt the descent into bitter partisanship. He announced that he would offer a proposal "that takes account of complaints both parties have had with the confirmation process" and said that he would seek Reid's assistance in securing early consideration of the measure. Senator Reid said that he was "encouraged that the majority leader seeks a more constructive approach." In April, four non-controversial nominees were confirmed. Despite these moves toward conciliation, the Senate was still on the brink of a showdown over contested nominees

The "nuclear option" in essence, entails a series of parliamentary maneuvers to achieve a goal by means lying outside of the Senate’s normal rules. In this case, the nuclear option was being contemplated in order to require only a simple majority vote on a parliamentary rule to overcome a filibuster of a judicial nominee. Currently, a filibuster can only be overcome by a vote of 3/5 (60) of the Senate.

The "nuclear option" has never been used to confirm a controversial judicial candidate, although there have been several unsuccessful attempts to use variations of it to change Senate rules during the opening days of Congress. As noted in the CRS Report, The "Constitutional" or "Nuclear Option" (PDF) (updated 04/05/05), attempts were made in 1957, 1976, 1969, and 1975. In 1975, Senator Pearson submitted a resolution to change the threshold for invoking cloture from 2/3 of those present to 3/5 of those present. Even though several Republicans have claimed that the 1975 incident set a precedent for use of the nuclear option, no precedent was established because Senator Byrd brokered a compromise that ended with the Senate adopting, through regular legislative channels, a cloture rule that altered the required vote to 3/5 majority of those present for all cloture votes except those on propositions relating to changing the Standing Rules of the Senate.

At the 11th hour, a bipartisan group of 14 senators (7 Republican and 7 Democrats) brokered a deal and issued a Memorandum of Understanding (PDF). They agreed to up or down votes on three appellate court nominees (Janice Rogers Brown, Pricilla Owen and William Pryor) and stated that "[n]ominations should only be filibustered under extraordinary circumstances" and urged the President to consult with the Senate over the nomination process.

This fragile agreement, though strained at times, has remained intact through the recent Supreme Court confirmation hearings of John G. Roberts, Jr. for Chief Justice of the United States and Samuel A. Alito for Associate Justice. John Roberts was first nominated on July 29, 2005, to fill the vacancy created by the resignation of Justice O’Connor. However, following the death of Chief Justice William Rehnquist, President Bush withdrew that nomination and nominated Roberts for the position of Chief Justice. He was confirmed by a vote of 78-22 on September 29, 2005. President Bush nominated Harriet E. Miers for Associate Justice on October 7, 2005. However, concern within the Republican ranks over her conservative credentials culminated in her withdrawal of her nomination on October 28, 2005. The President nominated Samuel A. Alito, Jr. for Associate Justice on November10, 2005. After five days of hearings, which at times became contentious, he was confirmed by the Senate on a vote of 58-42 on January 31, 2006.

To date, two Supreme Court nominees, twenty-two circuit court nominees, fifty-eight district court nominees, and one nominee to the Court of International Trade have been confirmed. Forty-five Article III judgeships remain vacant.

While there has been renewed discussion of making judicial nominations a divisive election-year issue, nominations and confirmations have proceeded at a normal pace during the 2nd session.

Bitter disagreements over the qualifications of some judicial nominees resulted in filibusters, accusations of racial, ethnic and religious bias, and calls for reform of the nomination and confirmation process.

Ten circuit court nominees were filibustered during the 108th Congress, though not in the traditional sense, since the filibusters were not continuous and therefore did not block all other business in the Senate. The filibustered nominees (PDF) were: Miguel Estrada, nominated to the D.C. Circuit; Charles Pickering and Priscilla Owen, both nominated to the Fifth Circuit; William Pryor, Jr., nominated to the Eleventh Circuit; Carolyn Kuhl, Janice R. Brown, and William G. Myers III, nominated to the Ninth Circuit; Henry W. Saad, David W. McKeague, and Richard A. Griffin, nominated to the Sixth Circuit. The nomination of Judge Pickering had previously been rejected on a party-line vote in a democratically controlled Senate Judiciary Committee during the 107th Congress. Miguel Estrada withdrew his nomination on September 4, 2003.

Pointing to the 1st Session filibusters of the nominations of Miguel Estrada and Priscilla Owen as proof that the process was broken, Senate Majority Leader Frist introduced S.J. Res. 138 in 2003 to reduce to a simple majority of 51 the number of votes needed to invoke cloture through successive votes over a two-week period. The Senate Rules Committee approved the resolution on June 24, 2003, on party lines, but it was never scheduled for a floor vote.

Citing "unprecedented obstructionist tactics," President Bush resorted to using his recess appointment power twice during the 108th Congress. He invoked his recess appointment power for the first time to appoint Charles Pickering to the 5th Circuit on January 16, 2004, between sessions of Congress. This action ratcheted up the partisan feuding over nominees, particularly because Pickering had previously been rejected by the Senate Judiciary Committee in the 107th Congress. According to Minority Leader Tom Daschle (D-SD) in remarks later given on the floor of the Senate, this marked the first time a President had used his recess appointment power to install a rejected nominee. President Bush used his recess appointment power a second time on February 20, 2004, naming William Pryor, the former Attorney General of Alabama, to the 11th Circuit. This recess appointment occurred during a five-day winter break, not between sessions, and provoked calls for retaliation from the Democrats who pledged to challenge the validity of Pryor's recess appointment.

Senate Democrats publicly announced on March 27, 2004, that they would block all new federal court appointments unless the White House promised to stop installing judges while the 108th Congress was in recess. A compromise eventually was reached whereby Democrats agreed to send 20 additional nominees to the floor for confirmation votes in exchange for the President forswearing additional recess appointments.

On October 14, 2004, the Court of Appeals for the Eleventh Circuit in Evans v. Stephens (PDF), rejected a challenge by Senator Edward Kennedy (D-MA) that Pryor's appointment to the court was an unconstitutional end-run around the Senate's right to confirm or reject judicial nominees. In an 8-2 decision, the court ruled that President Bush’s appointment of Pryor was a constitutionally permissible exercise of his recess-appointment authority.

For historical context, it is helpful to know that beginning with George Washington, presidents have recess-appointed more than 300 judges to temporary positions on the federal bench, with the majority going on to win confirmation and lifetime seats. Many of the appointments were made to diversify the bench with women and minorities: e.g., Thurgood Marshall received a recess appointment to the 2nd Circuit by John F. Kennedy in 1961. Before Bill Clinton recess-appointed Roger Gregory in 2000 to add a black judge to a previously all-white 4th Circuit, the last recess appointment occurred 20 years earlier when Walter M. Heen was appointed to District Court of Hawaii. He only served for the duration of his recess appointment. Roger Gregory was re-nominated by President Bush and confirmed by the Senate to a permanent seat on the 4th Circuit during the 107th Congress.

The 108th Congress continued to process nominees until the final days of the 2nd Session. The Senate Judiciary Committee held its last hearing on judicial nominees on November 16, 2004, and the Senate voted to confirm five district court nominees on November 20, 2004.

In the end, 104 of President Bush's 131 nominees were confirmed (28 to the courts of appeals, 85 to the district courts and one to the Court of International Trade), 2 were recessed appointed and 23 nominations were pending. At the close of the 108th Congress, twenty-eight out of 875 Article III judgeships were vacant, producing a record-low vacancy rate, which had hovered around or below 4.0% since summer 2003.

Judge Pickering's recess appointment expired at the end of the 108th Congress. The day after Congress adjourned sine die, Judge Pickering, who had previously held a district court seat, retired from the bench rather than taking senior status. Judge Pryor's renomination by the President and later confirmation on May 6, 2005, prevented his recess appointment from expiring, which was set to at the end of the 1 st Session of the 109 th Congress.

During the 107th Congress, the Senate Judiciary Subcommittee on Administrative Oversight and the Courts held hearings to examine the role of ideology in the nomination and confirmation process, and the House Judiciary Subcommittee on the Constitution held a hearing to examine whether there was a "vacancy crisis."

On October 30, 2002 , the President, asserting that a vacancy crisis did in fact exist, on October 30, 2002, proposed a timeline for the nomination and confirmation process. His plan requires federal judges to give a year's notice of their intention to retire or take senior status. Counting from the date of notice, the President would be required to nominate a replacement within 180 days. The Senate Judiciary Committee would have 90 days in which to hold hearings and the Senate would have 180 days from time of nomination to confirm or reject the nominee. The President's plan would require a Senate vote regardless of Judiciary Committee action or inaction, thereby radically altering the long-established role of the Senate Judiciary Committee to screen nominees prior to Senate deliberation and to block from floor consideration those nominees that it determines to be unfit for lifetime service on the federal bench. The plan was not officially adopted by Congress.

Despite the discord over the filling of vacancies, the 107th Congress created 12 new district court judgeships, seven of which were for two southern border courts overwhelmed by rising caseloads resulting from stepped-up immigration and drug interdiction activity (Pub.L. No. 107-273). In an unusual move, Congress delayed the actual "start-up" date for these new judgeships until July 15, 2003.

• The integrity and independence of the federal judiciary is threatened by partisan rancor and protracted delays in filling vacancies. Partisan nomination hearings, combined with protracted delays, deter talented lawyers from seeking positions on the bench.


• Heated political battles over nominations demonstrate a disregard for the vitality of a co-equal branch of government and delay the President and Members of the Senate from fulfilling their constitutional responsibilities.


• Extensive vacancies or protracted delays in the judicial nomination and confirmation process weaken the federal judiciary by depriving it of the judges needed to resolve disputes expeditiously.


• The ABA urges the President and Congress to put the integrity and independence of the federal judiciary before partisan politics and work cooperatively and cordially to fill existing and future federal judicial vacancies.

The ABA urges the President to nominate candidates for vacant Federal judicial positions promptly and urges the Senate to hear and vote on those nominations in an expeditious manner.

The ABA also urges the appointment and confirmation of minority lawyers of racial and ethnic diversity to all levels of the Federal judiciary.