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September 24, 2012 Articles

Confirming Federal Judges: Perspectives, Rancor, and Potential Reform

The judiciary has 42 spots that have no prospect of being filled in the short term.

By Stephen D. Feldman

As of July 16, 2012, the federal judiciary had 76 vacancies. Administrative Office of the U.S. Courts, Judicial Vacancies. Only 34 nominations are pending for these vacancies, leaving 42 spots in the judiciary that have no prospect, at least in the short term, of being filled. Id. Worse, 31 of the vacancies are deemed emergencies, as defined by the caseload of the court with the vacancy, as well as how long the judgeship has been vacant. Administrative Office of the U.S. Courts, Judicial Emergencies.

The reasons for these vacancies and for the rancor associated with the confirmation process for federal judges were the subject addressed by a panel of experts at the annual meeting of the ABA’s Section of Litigation in Washington, D.C., this spring. The program was organized by the ABA’s Appellate Practice Committee. This article summarizes key points made by the panelists, takes note of more recent developments that have brought the confirmation process to a virtual standstill, and explains potential reforms proposed by one of the panelists.

The State of the Federal Judiciary
The federal judiciary not only has 76 vacancies but is also seeing its vacancies filled at a slower pace. According to statistics compiled at, President Obama has nominated fewer judges at this stage of his presidency than George W. Bush at the same stage of his presidency. Federal Judicial Nomination Statistics (July 11, 2012). Consequently, fewer federal judges have been confirmed during Obama’s first term than in George W. Bush’s first term. The number of district court vacancies has increased by nearly 20 during President Obama’s first term. James Fallows, “American Dysfunction Watch: State of the Judiciary,” The Atlantic, June 5, 2012. The number of circuit court vacancies is almost the same now as when he became president; by comparison, George W. Bush cut circuit court vacancies from 26 to 17 in his first term. Id. In addition, the percentage of nominees who are confirmed has dropped from George W. Bush’s presidency to Obama’s presidency. Id.

Recent nominations for vacancies on the U.S. Court of Appeals for the Ninth Circuit provide a glimpse into the drawn-out confirmation process facing nominees. The Senate recently confirmed three of President Obama’s nominees for this court (Andrew Hurwitz, Jacqueline Nguyen, and Paul Watford), each of whom received strong support from his or her home-state senators. Watford received support from conservative law professors and business leaders; Hurwitz was recommended by Arizona’s two Republican senators. See Carl Tobias, “Filling the Ninth Circuit Vacancies,” The Hill,June 8, 2012. Nonetheless, each candidate’s nomination took months to complete. Nguyen, after receiving a unanimous vote from the Senate Judiciary Committee, did not receive a vote on the Senate floor for five months. Watford received the committee’s backing in December 2011, and Hurwitz in January 2012, yet their nominations were not voted on until May and June 2012.

The bottom line is this: Fewer vacancies are being filled, and they are being filled at a pace that does not reflect the need for greater federal judicial resources.

Reflections on the Current Process
In the wake of these problems, the Appellate Practice Committee sponsored a program on the topic of federal judicial confirmation at the recent Section of Litigation Annual Meeting. The speakers had all participated in the confirmation process but in different ways:

  • The Honorable Andre Davis of the United States Court of Appeals for the Fourth Circuit has been nominated to both the federal district court and appellate bench.
  • Laura Ellsworth, the partner-in-charge of the Pittsburgh office of Jones Day, serves on a federal judicial nomination commission in Pennsylvania.
  • Professor Michael Gerhardt, a constitutional law professor from the University of North Carolina Law School, has served as counsel to the Senate Judiciary Committee.
  • Sarah Wilson, a partner at Covington & Burling in Washington, D.C. played a significant role in the Clinton White House in advancing judicial nominations. She served as the panel’s moderator.

Judge Davis, perhaps surprisingly, described his nomination experience as a “pleasant” one. The most challenging aspect, he said, was compiling the vast amount of information that was needed. He said that he received excellent support and guidance from administration officials who assisted with his nomination.

Despite his own experience, however, Judge Davis expressed concern about qualified judicial candidates being scared away because of the scrutiny they will receive from the Senate; he said that, in some cases, it almost appears as if there is a presumption against the nominee’s confirmation. Judge Davis noted special concern about private practice lawyers, whose clients and pro bono work will be carefully studied during the nomination process. The recent Ninth Circuit confirmation of Judge Watford, as well as the recent Fourth Circuit confirmation of Judge Stephanie Thacker, might provide hope: Both were well-regarded private practitioners when they were nominated.

Ellsworth, who serves on the nominating commission in Pennsylvania, explained the nature and operations of that commission. Senators Bob Casey and Pat Toomey created three commissions—one for each of Pennsylvania’s federal judicial districts—to identify nominees for federal judicial vacancies. Press Release, Office of Sen. Pat Toomey, Sens. Casey and Toomey Announce Bipartisan Agreement on Judicial Vacancies (Apr. 26, 2011). Each commission has two chairs, one selected by each party. Each commission’s membership is created with attention to diversity in age, gender, and background. Ellsworth described the process as effective. Yet, notwithstanding the success of Ellsworth’s commission in the Western District (which saw 2 judges confirmed in October 2011), the Eastern District of Pennsylvania has 5 vacancies among its 22 judgeships. Carl Tobias, “Commentary: Filling Eastern District of Pennsylvania Judicial Vacancies,” McClatchy Newspapers, June 21, 2012.

Professor Gerhardt provided a wealth of history and commentary on the confirmation process based on his experience as counsel for the Judiciary Committee and substantial scholarship. Significantly, Professor Gerhardt said that, even though the current nomination process is hurtful to nominees, the Senate has largely operated within a broad notion of advice and consent. The level of scrutiny is not likely to be lowered, he said, based on the current stakes: The federal courts of appeals are, in most cases, the court of final adjudication for most federal cases—and the judges from those courts are feeder judges to the U.S. Supreme Court. According to Professor Gerhardt, these dynamics, more so than the legacy of the rejected Supreme Court nomination of Robert Bork, are the leading contributors to the heavy scrutiny that nominees face.

Recent Events Involving the Thurmond Rule
Just two months after this program, the high stakes described by Professor Gerhardt led to a high-profile exchange of barbs between ABA President Bill Robinson III and the Senate Republican leadership over the pace of judicial nominations.

The controversy arose from the so-called Thurmond rule, the practice (named after the late U.S. Senator Strom Thurmond) to end consideration of certain judicial nominations during an election year. The theoretical purpose of the rule, in the words of one commentator, is to keep the issue from becoming a political hot potato. Bruce Hausknecht, “Senators Call ABA’s Bluff on Judicial Nominations,” CitizenLink, June 26, 2012. The new or reelected president then has the opportunity to make nominations for pending vacancies.

On June 20, 2012, Robinson addressed the Thurmond rule in a letter to Senate Majority Leader Harry Reid and Republican Senate Leader Mitch McConnell. Letter from William T. Robinson III to the Honorable Harry Reid (June 20, 2012). First noting that the ABA takes no position on what the Thurmond rule actually means or whether it represents wise policy, Robinson observed that, in the past three election years, federal circuit court nominees were confirmed as late as June or July. He exhorted the Senate leaders to schedule votes on three specific circuit court nominees: William Kayatta Jr. for the First Circuit; Robert Bacharach for the Tenth Circuit; and Richard Taranto for the Federal Circuit. All three nominees, Robinson pointed out, have bipartisan support, and Kayatta and Bacharach have “the staunch support of their Republican senators.” Id. In Robinson’s words, the Senate has a continuing constitutional duty to act with due diligence to reduce the federal judiciary’s “dangerously high vacancy rate.” Id.

Senator McConnell and Senator Chuck Grassley, the ranking Republican member of the Senate Judiciary Committee, responded within the week. Letter from Mitch McConnell to William T. Robinson III (June 25, 2012). These Republican senators not only challenged the “objectivity and neutrality” of the ABA but also disagreed with Robinson’s fundamental premise that the judiciary’s vacancy rate was too high. Id.

According to the Republican senators, the federal appellate courts “are doing at least as well” as they did when Democrats invoked the Thurmond rule during the George W. Bush administration. In June 2008, for example, the Fourth Circuit Court of Appeals was “in crisis,” yet the Democrats refused to advance any of President Bush’s nominees for that circuit. Id. A similar situation arose in 2004 with the Sixth Circuit, they said.

As of early August 2012, the Senate Republicans have stood their ground. The last federal circuit court nominee to be confirmed was Judge Hurwitz on June 12.

Potential Reforms
The Thurmond rule, the number of federal judicial vacancies, and the pace of the confirmation process together suggest a need for meaningful reform. Professor Gerhardt, along with Professor Richard Painter of the University of Minnesota Law School, has recently proposed specific reforms—reforms derived from the professors’ study and analysis of the conduct of the so-called Gang of 14: seven Republican and seven Democratic senators who agreed to avoid the filibuster of judicial nominations absent “extraordinary circumstances.” Michael Gerhardt & Richard Painter, “Extraordinary Circumstances”: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform (American Constitution Society, rev. ed. Nov. 2011).

Professors Gerhardt and Painter found that, despite their initial agreement, the members of the Gang of 14 had individual definitions of “extraordinary circumstances.” Two senators defined the standard as “We’ll know it when we see it.” Another senator, Lindsey Graham of South Carolina, said that ideological attacks fall short of the standard—yet he recently held up the nomination of Goodwin Liu to the Ninth Circuit because, in Senator Graham’s view, now-Justice Liu “is an ideologue.” Meredith Shiner, “Senate GOP Filibusters GoodwinLiu,” Politico, May 19, 2011 (cited in Gerhardt & Painter). Other members of the Gang of 14 voted against Liu, owing to concerns about his objectivity and his alleged “activist judicial philosophy.” (To be sure, these types of attacks fuel the dynamics cited by Judge Davis at the ABA panel: Qualified judicial candidates cannot help but be apprehensive about the scrutiny in the nomination process.)

The senators’ differing views of “extraordinary circumstances” have caused the very logjam that they set out to avoid: In President Obama’s first two and a half years in office, his nominations have been subjected to a successful filibuster from each of the remaining Republican members of the Gang of 14. Neither President Obama—nor any president—can predict when a nominee may meet the “extraordinary circumstances” standard. Indeed, the sheer number of vacancies, and emergency vacancies in particular, reflects the failure of the Gang of 14 to implement their initial agreement.

Reflecting on the discord among the Gang of 14, Professors Gerhardt and Painter propose the following reforms:

  1. Prompt hearings. Senate hearings should be scheduled for a date within 90 days of when the President sends a nomination to the Senate. This rule should be relaxed only if a nominee fails to comply with reasonable requests for information from the Judiciary Committee. As Laura Ellsworth pointed out at the ABA panel discussion, extensive information is, in fact, critical to the vetting of judicial candidates.
  2. Limited delay tactics. Anonymous holds, and similar mechanisms, should not be exercised to delay any nomination. Senators should allow short delays of up to 30 days for a Judiciary Committee or floor vote if a senator, with the support of another senator, states a good reason for the delay—and there is a reason why that reason had not already been addressed. The purpose of allowing a minor delay would be to gain more information, not to create a fishing expedition for the very purpose of delay.
  3. Floor votes. After a nominee has been reported out of the Judiciary Committee and the nomination has been sent to the Senate floor, an up-or-down vote should follow, with a majority of “yes” votes resulting in confirmation.
  4. Streamlined objection procedures. When a senator believes that extraordinary circumstances counsel against confirmation, that senator would have the following options: First, the senator could simply vote “no.” As the professors point out, the full Senate has rejected judicial nominations based on floor votes—including rejecting nearly one in five Supreme Court nominations. The second option, in lieu of voting “no,” would be to introduce a resolution in which the senator states his or her specific objections. If the resolution received at least 45 votes, it would delay a confirmation vote for a period of time—after which there would be an up-or-down vote. A similar resolution could not be used a second time; the vote would have to occur.

These reforms are designed with several advantages, according to the professors. For one, it would take more than 40 senators to delay a decision. These reforms also require objecting senators to state their reasons for objecting with specificity, rather than simply filibuster. Third, the reforms would allow delay for legitimate reasons but would never result in the outright blockage of a vote on a nominee. Finally, the reforms are not tailored to promote any political agenda.

The slow and partisan federal confirmation process is a real issue for federal court litigants and practitioners. If vacancies are not filled, caseloads will not be reduced, and federal judicial resources will remain scarce. At the ABA panel, Ellsworth—the Jones Day partner—pointed out that, over the past 10 years, more than 400 judges have been nominated to the federal bench. As this number shows, the speed and equity of future nominations necessarily will be central to the quality and pace of justice afforded in our federal courts. In this author’s view, the ABA merits commendation for its continued advocacy to ensure that qualified judicial candidates receive a fair and speedy confirmation process.

Keywords: litigation, appellate practice, Gang of 14, Senate Judiciary Committee, Thurmond rule, judicial vacancies

Stephen D. Feldman is a partner at Ellis & Winters, LLP, in Raleigh, North Carolina.

Copyright © 2012, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).