Background
Protracted delays in the judicial nomination and/or confirmation
process weaken the federal judiciary by depriving it of the judges
needed to resolve disputes expeditiously. Protracted delays also
contribute to dangerously crowded dockets, suspended civil case
dockets, overburdened judges, and understaffed courts.
In total, during the 106th Congress, President Clinton nominated
116 individuals and the Senate confirmed 73 nominees (15 to the
U.S. courts of appeals, 57 to the U.S. district courts, and one
to the Court of International Trade) and rejected one. At the close
of the 106th Congress 67 vacancies remained (25 in the U.S. courts
of appeals and 42 in the U.S. district courts) and 41 nominations
were returned to the President. In December 2000, President Clinton
exercised his recess appointment power by appointing Roger Gregory
to the 4th Circuit.
Nineteen new district court judgeships were created during the
106th Congress. The last time judgeships had been created was in
1990, during the 101st Congress.
During the 107th Congress, the Senate Judiciary Committee was reorganized
and its membership finalized on July 10, 2001. New rules regarding
judicial nominations were announced. For the first time, the identity
of any Senator who files a “blue slip” (the process
by which an objection is raised to a nominee) will be made public.
No assurance was given that the full Senate, regardless of Judiciary
Committee action would consider all Supreme Court nominees, although
the Democratic leadership acknowledged that such nominees historically
have received floor votes. This reorganization delayed the normal
nomination and confirmation process. Additional hardships and resulting
delays were caused by the September 11 attacks and the subsequent
anthrax scare in congressional offices. Nonetheless, during the
1st Session, a total of eleven hearing were held on 34 judicial
nominees.
By the end of the 107th Congress, the President had nominated 131
individuals to the bench; the Senate Judiciary Committee had held
hearings for 103 nominees and approved 100, rejected two (Charles
Pickering and Priscilla Owen, both for the 5th Circuit Court of
Appeals) and not voted on one; and the Senate confirmed 100 nominees
-- 83 to the district courts and 17 to the courts of appeals. Thirty-one
nominations were returned to the President. The Senate Judiciary
Committee did not take any action on 28 of the 31 returned nominees.
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.
Over the last several Congresses, allegations that the nomination
and confirmation process have been held hostage to politics have
reached frenzied proportions and provoked calls for moderation and
respect among the branches of government. (Interbranch respect and
restraint is the basic theme underlying the conclusions and recommendations
of the 1997 ABA Report on Judicial Independence.) The 107th Congress
was no different. In fact, the Senate Judiciary Subcommittee on
Administrative Oversight and the Courts held hearings on June 26
and September 4, 2001, to examine the role of ideology in the nomination
and confirmation process. During the 2nd Session, on May 9, 2002,
the subcommittee held a hearing titled, “Ghosts of Nominations
Past: Setting the Record Straight.” The House Judiciary Subcommittee
on the Constitution held a hearing to examine the “vacancy
crisis” on October 10, 2002.
Current Status
On October 30, 2002, the President proposed a time line for nominations
and consideration of judicial nominees. He proposed that federal
judges give a year’s notice before taking retirement or senior
status. Counting from whenever notice is given, 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, which he would
like present and future Administrations and Congresses to adopt,
would radically alter the long-established role of the Senate Judiciary
Committee to screen and block nominees that it determines to be
unfit for lifetime service on the federal bench from floor consideration.
While the President and Congress may adhere to this schedule, given
the Republican majorities in both Houses of Congresses, it is unlikely
that Congress will officially adopt the plan.
There are currently 60 Article III vacancies -- 25 on the courts
of appeals, 34 on the district courts and one on the Court of International
Trade. President Bush renominated the 31 returned nominees on January
7, 2003. One nominee, William Steele, was renominated for a district
court position rather than for the 11th Circuit position for which
he was originally nominated during the 107th Congress.
ABA Policy
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.
Key Points
• The judicial selection and
confirmation process is one of the most important constitutional
responsibilities entrusted to the President and the Senate.
• The integrity and independence of the federal judiciary
is threatened by high vacancy rates and/or protracted delays
in filling vacancies. Persistently high vacancy rates impair
the ability of the courts to deliver timely justice. Delays,
combined with partisan nomination hearings, deter talented lawyers
from accepting a nomination.
• The current vacancy rate is high, but certainly not
the highest in recent memory. During past-president George Bush’s
term of office, there were 129 vacancies at the beginning of
the 102nd Congress and 131 the following year. When Clinton
took office in 1993, there were 115 vacancies on the bench and
this climbed to 122 in 1994. The vacancy rates at the end of
various sessions of Congress also have been as high or higher
than now: 131 in 1991, 103 in 1992, and 112 in 1993.
• Now that the need to respond exclusively to terrorism
has passed, the ABA hopes that the President and Congress will
focus on reducing the number of vacancies on the federal bench,
and that Democrats and Republicans alike will put the integrity
and independence of the Federal Judiciary before partisan politics
and work together to fill existing and future federal judicial
vacancies expeditiously.
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Last Updated: January 9, 2003
Background · Current
Status · ABA Policy · Key
Points · Links
American Bar Association