Advice and Consent During the Bush Years: The Politics of Confirming Federal Judges

The following was orginally published in Judicature (Volume 92, Number 6, May-June 2009)

The judicial appointments process has become needlessly acrimonious. So intoned Senate Republicans in 2009—even as they reserved the right to filibuster any of President Barack Obama’s judicial nominations deemed unacceptable to the Republican conference. “Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee.” Coming on the heels of an eight-year contentious battle between Democrats and Republicans over the Democrats’ treatment of President George W. Bush’s nominations to the lower federal courts, the Republicans’ warning reminds us of the intensely divisive character of judicial selection, characterized in the Bush years by senatorial foot-dragging, declining confirmation rates, and protestations by both political parties about the broken nature of advice and consent. This article explores the politics of judicial selection, focusing on partisan, institutional, and temporal forces that shape the fate of presidential appointments to the federal trial and appellate courts. Putting the experiences of the Bush administration into historical perspective, it assesses patterns over the past 60 years, shows broad trends in the treatment of judicial nominees, and pinpoints developments that have fueled conflict over the makeup of the federal bench. It suggests that polarization of advice and consent worsened over the Bush years, but was broadly consistent with the deterioration of judicial selection over the past several decades.

For better or worse, federal judges in the United States are today asked to resolve some of the most important and contentious public policy issues. Although some hold onto the notion that the federal judiciary is simply a neutral arbiter of complex legal questions, the justices and judges who serve on the Supreme Court and the lower federal bench are in fact crafters of public law. In recent years, for example, the Supreme Court has endorsed the constitutionality of school vouchers, struck down Washington, D.C.’s ban on hand guns, and, most famously, determined the outcome of the 2000 presidential election. The judiciary clearly is an active partner in the making of public policy. As the breadth and salience of federal court dockets has grown, the process of selecting federal judges has drawn increased attention. Judicial selection has been contentious at numerous junctures in American history, but seldom has it seemed more acrimonious and dysfunctional than in recent years. Fierce controversies such as the battles to confirm Robert Bork and Clarence Thomas to the Supreme Court are emblematic of an intensely divisive political climate in Washington. Alongside these highprofile disputes have been scores of less conspicuous confirmation cases held hostage in the Senate, resulting in declining confirmation rates and unprecedented delays in filling federal judgeships. At times over the past few years, over 10 percent of the federal bench has sat vacant. Although Senate parties reach periodic agreements to release their hostages, conflict over judicial selection continues to rise. All the while, the caseload of the federal judiciary is expanding to an exceptionally heavy level.