June 02, 2017 HUMAN RIGHTS

Selecting Federal Judges in an Era of Political Polarization

by Russell Wheeler

The Senate majority’s refusal to consider Judge Merrick Garland’s March 16, 2016, nomination to fill the vacancy created by Justice Antonin Scalia’s death is 2016’s Exhibit A of the dysfunctional federal judicial appointment process. Most recent U.S. Supreme Court nominees have been confirmed and confirmed expeditiously, but the number of apparently party-line negative votes has increased. Anthony Kennedy (1988) received none, Clarence Thomas (1991) received 48. David Souter (1990), Ruth Ginsburg (1993), and Stephen Breyer (1994) saw a handful each, but the two W. Bush (John Roberts, 2005; Samuel Alito, 2006) and two Obama nominees (Sonia Sotomayor, 2009; Elena Kagan, 2010) received from 22 to 42 negative votes.

The process for district and circuit judges has also become fairly contentious as measured by the confirmation rate and the elapsed time between nomination and confirmation (Table1). District confirmation rates remained robust at least through the W. Bush administration. (The confirmation rate for the 73 nominees submitted in H.W. Bush’s first two years was 95 percent but less than 70 percent for the 177 nominees submitted in his second two years, most to fill a surge of new judgeships that Congress created in late 1990.)

Obama’s lower district confirmation rate may be a harbinger of things to come. The rate would be even lower had Democrats not pushed through a large number of confirmations in 2014—over a quarter of his almost eight-year total to date, a confirmation flurry aided but hardly due solely to Democrats’ late-2013 abolition of the filibuster for district and circuit nominees. Obama’s confirmation rate would be higher if Republicans in assuming the majority in 2015 had followed the precedent of Senates in Reagan’s, Clinton’s, and W. Bush’s final two years and confirmed 60 or more district and circuit judges rather than the 20 confirmed in 2015 and 2016.

Circuit judge confirmation rates, though, began a slow decline in the second half of the H.W. Bush administration (albeit for the aberrational reasons described earlier) and continued into the Obama administration, with an uptick due to 2014’s confirmation frenzy.

Moreover, nominees who get confirmed have had to wait increasingly longer—median days for Reagan’s district and circuit appointees was slightly over 40, a figure that increased steadily to 215 and 229 for Obama’s. (The median days for confirmation for Supreme Court justices since Anthony Kennedy is 66.)

What Accounts for This Increased Contentiousness?

In May 2016, Wyoming Senator John Barrasso claimed, as have many, that confirmation partisanship “started in 1987, when Senate Democrats launched an all-out assault against the [Supreme Court] nomination of Judge Robert Bork.” Think again. Southern Democrats ran some of President Eisenhower’s nominees through a gauntlet after Brown v. Board of Education (1954), as they did President Johnson’s nomination of Thurgood Marshall. The Senate refused to confirm two of Johnson’s and two of President Nixon’s Supreme Court nominees. The Bork nomination is better seen, not as the cause of the deteriorated confirmation process, but as a not-very-pretty example of that deterioration.

A more reasonable explanation as to district and circuit nominations is the political polarization that has limited the national government’s ability to deal with big problems and even to perform once-routine tasks, like funding the government without games of budgetary chicken. Compromise suffers because political parties are more ideologically cohesive—few liberal Republicans or conservative Democrats. Polarization has, not surprisingly, corrupted the once near-ministerial task of filling district and circuit vacancies. Opposition party senators (Democrats and Republicans) are less likely to acknowledge a president’s prerogative to appoint judges who meet basic tests of acceptability, acknowledgments that encouraged reciprocal behavior from the other party once control of the White House changed.

Polarization dates from the 1960s, catalyzed by civil rights and social welfare legislation and judicial decisions in areas that courts previously avoided. Scholars have documented polarized judicial decision-making since then. For one example, Sennewald, Manning, and Carp report that from 1934 to 1967, Democratic-affiliated district judges made liberal decisions (based on standard social science criteria) 2.6 percentage points more often than Republican-affiliated judges. After 1967, the percentage rose to 10.2 points.

That might be because Presidents Johnson and Nixon intensified the practice of appointing like-minded judges. But polarization’s effect on confirmations came later. Despite the turbulence that drove both from office, they had little trouble filling district and circuit vacancies. From 91 percent to 99 percent of their nominees were confirmed, and median days from nomination to confirmation were in a range of 17 to 24 median days.

There were other changes in the process starting in the 1970s. Until then, with few exceptions, white male senators evaluated white male judicial candidates. They were 100 percent of President Eisenhower’s district and circuit appointees, a figure that declined erratically to 38 percent under Obama, the first president for whom white males constitute a minority of all judicial appointees. At least on a first cut, though, this increased diversity does not seem the cause of contentiousness. Of Obama’s white male district nominees, 84 percent were confirmed, as were 83 percent of his other nominees, and the median days from nomination to confirmation were almost the same. Clinton and Bush confirmations show similar patterns.

Interest groups devoted to opposing or supporting nominees have also been long on the scene, but Binder and Maltzman caution at 103 that “[a]lthough … interest groups may have fanned the fires over judicial selection, … the introduction of new blocking tactics developed in the Senate long after groups had become active.”

What Are the Results of This Increasingly Polarized Confirmation Process?

One result of the polarized confirmation process is the strain that unfilled vacancies imposes on litigants, and on sitting judges, who work more but can’t carry all the cases that vacancy-filling appointees would have assumed. Civil litigants—civil rights claimants and the much larger number of commercial litigants—suffer because criminal cases take statutory precedence.

For another, drawn-out contentious confirmation dates make it harder to find potential district nominees, especially practicing lawyers, willing to go through the process. Since Eisenhower, the percentage of practicing attorneys among circuit appointees has fluctuated roughly between 20 and 30 percent. But there has been a steady decline in the proportion of district judges who come from the practicing bar—67 percent of Eisenhower’s district judges versus 48 percent of Clinton’s, 38 percent of Bush’s, and 36 percent of Obama’s. Whether a good or bad trend, a practicing attorney in the 1950s would welcome a district nomination because his practice would be in limbo only briefly after nomination and confirmation was highly likely. His counterpart today—he or she—would not make the same calculation and worry as well over mud-slinging. “Why,” Senate aides often ask, “would anyone go through that?”

What can we expect in 2017–18 and beyond, with President Trump, who vows to fill the Scalia vacancy with a Scalia-like justice, and most likely will look for conservative jurists to fill circuit and district vacancies? There are several factors at play.

First, Senate Democrats are unlikely “to let bygones be bygones.” After Republicans refused to consider the Garland nomination (a moderate judge nominated by a president with a solid electoral victory in 2012), they will likely fight the confirmation of a rock-ribbed conservative nominated by a president who squeaked into office with a slim electoral college victory and a substantial popular vote loss. The questions are whether they will filibuster the nominee and, if so, whether Republicans will eliminate the filibuster for Supreme Court nominees, just as Democrats did for district and circuit nominees in December 2013. If so, and given that Ginsburg, Breyer, and Kennedy, who are over or near 80, could leave active status in the next four years, the Supreme Court by 2020 may be in solid conservative judicial hands well into the future. 

Second, Trump will also have many district and circuit vacancies to fill—over 100 in place on Inauguration Day (about twice as many as Obama inherited) and a substantial number of circuit and district judges who are now or will become eligible to leave active status (and retain their salary) over the next four years. As I documented in a late-2016 post, with luck Trump might be able to switch the Democratic-appointee majority on the district and circuit courts and chip away at what is now a nine to four edge in courts of appeals with majorities of Democratic appointees. But consider again that the 114th Senate confirmed the smallest number of judges in recent memory and adjourned with 44 district and seven circuit nominees pending (with about 280 median days since nomination). Nominee-less vacancies were located mainly in states with at least one Republican senator, suggesting vigorous use of home-state senators’ virtual veto power over nominees.

That obstructionism will not dispose Democrats to cooperate in changing the face of the federal judiciary, any more than they will sit by while Republicans try to reshape the Supreme Court for a generation. Democrats, though, have, or may have, the filibuster as a tool to thwart Supreme Court nominations. They took that tool away for Republicans (and now themselves) in late 2013 as to district and circuit nominees. Their remaining tool, besides parliamentary obstructionism, is the effective veto power that homestate senators of either party have over nominations. Senate leadership say they will continue to honor the commitment not to process nominees to whom either home-state senator objects. Twenty-eight states—including the judgeship-rich states of California, Illinois, Michigan, New York, Ohio, and Pennsylvania—will be represented by at least one Democratic senator, who may bargain hard with the administration, as home-state Republican senators did during the Obama administration. If so, the question becomes whether Senate leadership will continue to honor this tradition.

Russell Wheeler is a visiting fellow in the Brookings Institution’s Governance Studies Program; president of the Governance Institute, a small nonprofit research organization that studies the dynamics of intergovernmental relationships; and an adjunct professor at the Washington College of Law, American University.