Testimony before the House Judiciary Committee - Subcommittee on the Constitution

Good morning Chairman Chabot and Members of the Subcommittee. Thank you for the opportunity to testify. The topic of today's hearing is certainly worthy of this Committee's attention. That you took the time to conduct this hearing so soon before you must recess for the election is further proof that the subject matter is important.

For the record, I am a Senior Fellow in Legal Studies and Director of the Center for Legal and Judicial Studies at The Heritage Foundation, an independent research and educational organization. I am a graduate of the University of Chicago Law School and a former law clerk to Judge Edith H. Jones on the U.S. Fifth Circuit Court of Appeals. From 1995-97, I was the Chief Counsel of a subcommittee of the House Government Reform Committee, and much earlier than that, I was a professional staff member for U.S. Senator Jennings Randolph (D-WV). In addition, I have also served in the U.S. Department of Justice, Office of Legal Counsel (OLC), during separate periods in the Reagan, Bush, and Clinton Administrations. Among its duties during the period when I worked there, OLC helped vet potential judicial nominees for the President and served as informal counsel to Supreme Court nominees during their confirmation hearings. Thus, I have a past professional link to and a great interest in all three branches of the federal government, including both Houses of Congress.

I concur in the statement contained in the hearing title, "A Judiciary Diminished is Justice Denied: the Constitution, the Senate, and the Vacancy Crisis in the Federal Judiciary." Nevertheless, the situation in the federal courts is uneven. There is not yet a crisis across-the-board, even though judicial emergencies have been declared for many courts. On close examination, the consequences of the high vacancy rate are partially ameliorated by the hard work of the judicial branch itself. That said, many federal appellate circuits have had such sustained high vacancy rates that it is straining the justice system mightily and has contributed to at least the perception of judicial manipulation in some very important cases.

The obvious cause of the vacancy crisis is the U.S. Senate's conscious refusal to act in a timely manner on many of the President's judicial nominations. The near complete breakdown in the judicial confirmation process as it relates to United States court of appeals nominees is worthy of special attention and concern. It is simply not possible to justify the stonewalling and other improper committee action on the grounds of payback or any other excuse. In 1997, when the vacancy rate on the appellate courts was less than half of what it is now, the current Chairman of the Senate Judiciary Committee, Patrick Leahy, said the situation was a "crisis" that interfered with the administration of justice. The current state is nothing less than a dramatic failure of the Senate's constitutional duty to provide its advice and consent to presidential appointments.It is also a violation of the Senate's obligation of comity to the executive and judicial branches of government, which is a vital aspect of the separation of powers.

The result is not just limited to shame on the Senate, however. The Senate's actions have begun to impair the judicial branch's ability to perform its constitutional functions. That impairment is limited at this point, but the impairment grows steadily as the period of sustained judicial vacancies is extended. The House Constitution Subcommittee is right to explore the implications of the Senate's failure.

The Constitutional Framework of Analysis

As this Subcommittee knows, the United States Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court, and all other [Principal] Officers of the United States, whose Appointments are not herein otherwise provided for." Art. II, § 2, cl. 2. That clause further provides that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. "All federal judges below the Supreme Court are inferior in the judicial sense. 

Lower court judges might also be "inferior Officers" for Appointments Clause purposes for whom Congress could vest the appointment in either the President or the Supreme Court alone. But Congress (or the Senate) has chosen to retain its power to pass on all judicial nominations. That is its prerogative. Yet, that choice underscores the Senate's duty, which extends to the other two branches of government and to the citizens who rely on the justice system, to provide its advice and consent in good faith and in a timely manner.

Scholars of the founding period have examined the historical record to illuminate some issues that I will only briefly address here. For example, there is evidence that the framers of the Constitution expected every presidential nominee to be voted on by the entire Senate and feared the arbitrary exercise of appointment power by a small committee.See Federalist Nos. 76-77. That seems clear, but I am unsure whether the text of the Appointments Clause, which confers the advice and consent role to the entire Senate, requires the Senate to act on every nomination. Those I respect have opined that the Constitution does not permit a committee of the Senate to block a nomination, but I am still dubious of that proposition. The Rules Clause that allows the Senate to make its own rules of procedure (Art. 1, § 5, cl. 2) may permit the entire Senate to delegate its agenda-setting function to a committee.

Others have interpreted the Senate Rules to require a full-Senate vote on presidential nominations regardless of what the relevant committee recommends. In my view, Senate Rule XXXI is ambiguous. It requires referral of all presidential nominations to "appropriate committees," and it further states that "the final question on every nomination shall be, 'Will the Senate advise and consent to this nomination?'" Does that simply specify what the final question shall be on "every nomination" that is referred back to the full Senate or does it imply that the final question must be asked for "every nomination?" The Senate parliamentarians have given it the first construction.

I have not studied in depth either the constitutional question or the related question regarding the Senate rules in part because there is ultimately no remedy-apart from shame-for the violation of such a requirement. Assuming a disappointed nominee with standing filed a suit to force a full-Senate vote on his nomination, the courts would almost surely rule that the case presented a "political question" and decline to rule on the matter under its "political questions" doctrine. As for the tactic of urging shame, many other aspects of the confirmation process should have generated more shame. But it is still appropriate for citizens to add their voice to the chorus.

In that vein, the full Senate ought to vote on each one of the President's nominees to high office. The Senate should do so as a matter of prudence and in keeping with the comity that is required of each branch of government to the others, whether the Constitution or the Senate's current rules requires such a vote or not. This is particularly true for those who have been nominated for a lifetime post in the judicial branch. The procedures the Senate adopts for such nominations affect more than just the business of the Senate; they also touch on the constitutional obligations of both other branches of government. The President has the obligation to nominate and appoint judges to fill up vacancies in the federal courts, and confirmed judges are the only individuals who can exercise the power conferred in Article III of the Constitution.  

A full-Senate vote is even more appropriate where it is fairly clear that a majority of the Senate would vote to confirm the nominees, which is still the case with Charles Pickering and Pricilla Owen. Both Pickering and Owen received well-qualified ratings from the American Bar Association (ABA) review panel.In April 2001, Senator Leahy described a positive rating by the ABA as the "gold standard. "Gold does not tarnish, so it is unclear why Senator Leahy and other Democrats on his committee have now abandoned their high regard for the ABA review panel.

No Republican senator announced opposition to either Pickering or Owen, and at least one senator from the majority announced support for both of them. Democratic senators who expressed their support for Pickering and Owen are not on the Judiciary Committee, but they sought the opportunity to vote on the nominations. Yet, the Senate Judiciary Committee refuses to forward these nominations to the full Senate-even with a negative recommendation, and Majority Leader Tom Daschle does nothing to bring the nominations to the Senate floor. Whether or not the Constitution or the Senate rules require such a full-Senate vote, it is still undemocratic for the current Senate leadership to block a presidential nomination from even being debated on the Senate floor. Ten senators are currently dictating the composition of the federal bench. Even a filibuster by a minority of the Senate would be less cowardly than the current practice.

The Cause of Sustained High Vacancies in the Federal Courts

The most serious problem with the confirmation process is not the Senate Judiciary Committee's refusal to forward nominations that it has acted on to the full Senate, but its refusal to complete its action on most court of appeals nominations. Over the past several decades, the Senate sometimes has slowed down the confirmation process toward the end of a presidential term if the President and Senate majority are from different parties. Although some of President Clinton's judicial nominations were confirmed at the end of the 106th Congress, a slowdown in the last few months and the October adjournment of the 106th Congress contributed to a slightly higher than normal vacancy rate at the beginning of President George W. Bush's administration. (An even more severe slowdown took place at the end of President George H.W. Bush's administration.)

There is always some delay in the judicial nomination process at the start of a new presidential administration. The President possibly could have begun sending judicial nominations to the Senate in March of 2001, but the delayed transition period for President Bush pushed back the normal FBI background check and clearance process for cabinet and sub-cabinet nominees.Some of these officials also help vet potential judges. The pace of President Bush's judicial nominations since early May of 2001 was record setting. Within a year of announcing his first nominees, the President had sent more than 100 judicial nominations to the Senate. The ABA completed its review and supplied its recommendation within about three weeks of each nomination. With one exception, so far the ABA has rated every one of President Bush's nominees either qualified or well-qualified.

Two judges who had received an earlier appointment from President Bill Clinton and a sitting district judge who was acceptable to Louisiana's Democratic senators were promptly confirmed for life-time seats on the appellate courts. Almost all of the remaining nominations languished in the Senate without hearings even being scheduled. For months, the rate of confirmation of all federal judges barely kept pace with retirements. The pace of confirmation of federal district judges has picked up in the past year, but the confirmation process for court of appeals nominees has been set at a glacial pace.

1.The vacancy statistics and periods of unreasonable delay by the Senate

In the past, confirmation battles were waged over certain Supreme Court nominees and a very few lower court nominees. As mentioned above, the Senate sometimes slowed down the confirmation process toward the end of a presidential term, but this slowdown was the exception rather than the rule. What's dramatically different now is the systematic refusal to act on many of President Bush's initial nominees, particularly his appellate court nominees. The number of vacancies on the federal courts has actually increased by about fifteen percent since the end of the last Congress. And during this Congress, most of President Bush's initial group of judicial nominees have been waiting for more than 17 months without so much as a hearing and a committee vote.

Based on the practice of many federal judges in announcing their retirement in advance and my review of recent confirmation statistics, I believe that a vacancy rate of about three to four percent represents the "full employment" level (to borrow a term from economists) for the federal judiciary. Yet, the Senate Judiciary Committee's inaction and the Senate's overall slow pace on most of the President's appellate court nominees have resulted in much higher vacancy rates. On the federal district courts, 50 of 665 judge seats (or 7.5%) are vacant. On the federal appellate courts, 27 of 179 judgeships (or 15.1%) are vacant.

Retired Judge (and former U.S. Senator) James Buckley concluded that "the Senate's willful failure to act upon a president's judicial nominees can only be described as an obstruction of justice." James L. Buckley, "Obstruction of Justice," The Wall Street Journal, June 13, 2002, A.16. Judge Buckley pointed out that, when he was a senator, nominees of the caliber nominated by President George W. Bush "would have been confirmed within weeks after their names had been submitted. "Yet, it appears that a majority of President Bush's first eleven court of appeals nominees will not even have a committee vote 20 months after they were nominated.

Whether they all deserve to be confirmed or not (and the ABA thinks they are deserving), the Senate's conscious refusal to schedule hearings for most appellate court nominees is a shocking dereliction of duty. There may not be a committee vote by the end of this year for such distinguished professors, Supreme Court advocates, and judges as Deborah Cook, John Roberts, Jeff Sutton, Michael McConnell, Miguel Estrada, Terrence Boyle, and Timothy Tymkovich. That's inexcusable.Moreover, the two who did receive a hearing this fall (Michael McConnell and Miguel Estrada) may have to start the process all over again in 2003 if the full Senate does not vote on their nominations before the end of the current Congress.

With regard to court of appeals nominees, the delays are many times worse than at any recent time. These delays strain the judiciary and are unfair to individual nominees. To the extent that an intentionally prolonged delay can damage a law practice and keep individual nominees in professional and personal limbo, it becomes cruel. As explained further below, those who rely on the federal justice system may suffer as well.

The American Bar Association (ABA) has consistently urged the Senate to act promptly to confirm judicial nominees. In August of 2002, however, the ABA House of Delegates approved an especially strong statement that for the first time specifically identified the Senate Judiciary Committee as a "cause of blockage in the confirmation process" and urged the Committee to take prompt action on nominations. The ABA said that: "The notion that the Committee, by the simple expedient of refusing to hold timely hearings may avoid confirmation proceedings in the full Senate, is simply unacceptable to our notion of an appropriate and constitutional nomination process."

A persistent but low vacancy rate is unavoidable, reflecting a small number of vacancies that are promptly filled. Most federal judges are appointed at the prime of their professional career, or slightly later.Statutes provide comfortable benefits for federal judges who assume a semi-retirement status at age 65 (and after they have served 15 years). Most judges assume this "senior status" soon after they become eligible. Some judges announce their retirement date (colloquially, it is referred to as "going senior") with enough advance notice to allow the President time to nominate a replacement, but other judges do not. Serious illness, death, and other unanticipated events cause some vacancies to arise without notice. Accordingly, there will always be some vacancies in the federal courts.

In recent decades, when the confirmation process is running smoothly, the vacancy rate has dropped to around five percent. Chief Justice William Rehnquist has still admonished past Presidents and past Senates to act more expeditiously in nominating, confirming, and appointing judges to fill anticipated or actual vacancies. By comparison, a congressional seat is not left vacant for long before a special election is held (in the case of a House seat) or a temporary appointment is made (in the case of a Senate seat). When government officials are willing to spend a lot of time and money for a special election to fill 1/435th of the seats in the U.S. House of Representatives, Congress should make more of an effort to promptly fill numerous vacancies in the federal judiciary.

There were 67 judicial vacancies at the end of the 106th Congress and 77 now near the end of the 107th Congress, proving that the Senate is not even keeping pace with new retirements. Dueling statistics have unfortunately become commonplace in this debate, but there is one set of statistics that simply cannot be explained away. The stalling is undeniable when you consider the court of appeals nominations by themselves. The chart below shows the average number of days the first eleven circuit court nominees had to wait for final Senate action, and the respective confirmation rate by President.

Average Number of Days Initial 11 Court of Appeals Nominees Court of Appeals    

If you eliminate the judges nominated by President George W. Bush who were first appointed by President Clinton, the picture looks even worse. Only one of the nine non-Clinton judges has been confirmed, a total of 11%. The average wait approaches 500 days for the remaining nine nominees, and is in excess of 500 days for eight of them. As this testimony is being prepared, seven of them have not had a committee vote and four have not even had a hearing.

Recently, Judge Buckley urged that the Senate rules be changed to allow the Judiciary Committee a few months to review the qualifications of judicial nominees and make its recommendation. Judge Buckley argued that the full Senate should vote after a few months whether or not the committee had acted. The current Chairman of the Senate Judiciary Committee, Patrick Leahy, proposed similar procedures just a few years earlier. Senator Leahy sponsored a bill in 1998 that would have required the Senate to act on all nominations pending for more than 60 days before it took a ten-day or longer recess.See S. 1906, 106th Congress.

Pursuant to his own legislative plan, Senator Leahy should at least have finished committee action on Miguel Estrada, Deborah Cook, John Roberts, Jeff Sutton, Michael McConnell, Dennis Shedd, Terrence Boyle, Timothy Tymkovich, Charles Pickering, and Priscilla Owen before the Senate took its August recess in 2001. Each of the nominees received a well-qualified rating from the ABA. Each of their nominations had been pending in his committee for over 60 days by then, most for over 80 days. But Leahy did not complete committee action on any of the above nominees by the August 2001 recess. Of those listed above, only Pickering, Owen, and Shedd were given hearings by the August 2002 recess-one year later. Many other court of appeals candidates nominated during the summer of 2001 have not had a committee hearing either.

Although the federal courts of appeals have an overall vacancy rate of over fifteen percent, some circuits have had a sustained vacancy rate of between thirty and fifty percent. The situation in the U.S. Sixth Circuit Court of Appeals is the most dramatic. During the Clinton Administration, the Chief Judge of the Sixth Circuit wrote to the Senate Judiciary Committee to express his deep concern regarding four vacancies in the sixteen-member court. He wrote that his court was "hurting badly" and that the situation was "rapidly deteriorating due to the fact that 25% of the judgeships are vacant."

The Sixth Circuit was operating for most of this past year with only half of its authorized judges.It still has seven vacant positions today, a 44% vacancy rate. President Bush made seven nominations to that court in 2001, two of whom were in the very first batch sent to the Senate on May 9, 2001. (President Bush sent an additional nomination a few months ago.) But Senator Leahy has held a hearing on just two of them, and only one has been confirmed. As explained below, the Senate's complete inaction on the circuit with the highest vacancy rate has caused some particular hardships and led to some questionable judicial practices.

2.     The Senate Judiciary Committee is not providing its advice and consent in a manner consistent with the Constitution or the rule of law.

In addition to the intentionally prolonged delay in voting on most of the President's judicial nominations, several of the hearings that were conducted by the Senate Judiciary Committee were not only irrelevant to the merits of individual nominees, they instead attempted to lay the predicate for improper questioning at later confirmation hearings. In keeping with this agenda, hearings that were conducted for appellate court nominees during this Congress have been intentionally confrontational and focused on matters that are not properly the subject of such a hearing.

The few hearings that were conducted for appellate court nominees focused on a nominee's supposed political beliefs rather than his or her qualifications or philosophy of judging. Texas Supreme Court Justice Priscilla Owen was cross examined for seven hours in one hearing this past July, despite her obvious qualifications to join the U.S. Fifth Circuit Court of Appeals. Justice Owen received a unanimous well-qualified rating from the ABA.Justice Owen's reelection to the Texas Supreme Court in 2000 was endorsed by every major newspaper in Texas, and Owen won the support of a record number of voters in Texas. Yet, on a party-line vote, the Senate Judiciary Committee voted in early September to block her confirmation based on supposed ideological concerns. Last month, committee Democrats also tried to discredit and bully Miguel Estrada over his purported personal ideological leanings.

This conduct is based on a fundamental misconception some senators have regarding the proper role of judges and our judicial system. There is a crucial difference between political ideology, which is a set of political beliefs or goals, and a nominee's judicial philosophy, which is a theory of, or approach to, judicial decisionmaking. Political beliefs ought to play no role in a judge's judicial philosophy.

The rule of law is premised on the following bedrock principle:law can be objectively determined and fairly applied to all no matter what judge or other official is in power. The rule of law is an ideal, and every ideal is imperfect. Yet, American school children learn that this is an essential characteristic of our system of government. Ours is a nation of laws and not men, we are told. This is another way of saying that the application of the law does not vary depending on who is in charge. The law can be, and for the most part is, applied consistently and fairly to all. Any deviation from this norm is to be condemned, not encouraged.

Accordingly, the founding generation believed that the federal judiciary would be "the least dangerous" branch-in large part because they understood that the "judiciary power" was fundamentally different than that exercised by the political branches. In Federalist 78, Hamilton argued that legal traditions would cabin a judge's role and mode of decisionmaking. A judge, he maintained, would exercise "judgement" not "will." His argument presupposed that such a distinction was intelligible and readily understood. That conception of law-that judges can objectively discern what the law is, rather than what it should be-was the governing orthodoxy for over 130 years.

Rule by the party embodies a different ideal-one practiced by many communist nations. In that system, all judicial rulings are supposed to conform to the then current dictates, plans, agenda, or beliefs of the governing party. What is desired more than anything else in a judge or other government official is the proper political ideology, because that best informs all other action. Since there is thought to be no objective truth, the correctness of a ruling may change if the party line changes. Generally, only long-time party members who have proven their personal allegiance to the party's teachings are entrusted with high government power.

Antecedents of this thinking in America can be found in post-civil war nihilism, but the legal realists of the 1920s were the first to significantly undermine the rule of law. Legal realism, mingled with strains of pragmatism, relativism, and deconstructionist thought, captured the legal academy between the 1920s and 1960s. It began to bear substantial fruit in the courts thereafter. It is an oversimplification, but the orthodox thought of this era-running at least through the mid-1980s-is that law is just politics by another name.

This development is profoundly misguided and destructive. Yet, it is not surprising that its adherents increasingly urged the courts to become instruments of social change in overtly political ways. The courts' rulings ending government discrimination were (and are) necessary, but the tools the courts developed to fight the massive resistance to civil rights were also invoked to promote more amorphous social goals without clear constitutional foundations.

For a judge, such a seductive request is difficult to resist, even more so if the dominant legal culture has eliminated the traditional moral constraints on judging. With differences of style rather than content, the courts began to assume the role of another political branch to which dissatisfied citizens could turn to have their personal preferences, their will, enacted into law.

In this climate, it is easy to see why judicial confirmation battles might develop for Supreme Court justices. Unfortunately, the confirmation battles themselves further politicize the courts and reinforce the caustic notion that the courts are little more than a political plum. This notion was expressly stated by Abner Mikva and many liberal academics, who argue that Bush's Presidency is illegitimate. Still brooding about the correct Supreme Court ruling in Bush v. Gore, Mikva and others who should know better have urged the Senate to confirm no Bush nominee to the Supreme Court and encourage all means of thwarting his legitimate nominees to the appellate courts.

Hearings conducted by Senator Charles Schumer last fall on "whether ideology matters" in judicial selection and more recently in connection with the D.C. Circuit Court are an outgrowth of that dangerous thinking. Perhaps ideology matters a great deal for a nominee or senator who believes that there is no meaningful difference between law and politics. But that belief would demonstrate to me that the nominee has an unacceptable judicial philosophy. No further inquiry into the nominee's political beliefs is necessary. Testimony offered by President Clinton's former Counsel, Lloyd Cutler, and President George H.W. Bush's former Counsel, C. Boyden Gray, urged the Senate not to focus on political ideology in judicial selection. They both also agreed that extensive partisan inquiry is harmful to an independent judiciary.

A nominee with an appropriate judicial philosophy is one truly dedicated to the rule of law. Senators should be free to probe a nominee's theory of judging, i.e., the methodology he would use when deciding cases, as long as the question does not ask the nominee to take a position on a matter that may come before him. Thus, I do not think that it is always enough for a nominee for a lower court judgeship to simply pledge that he will follow the law as set forth by the higher courts without explaining what that means. A record of scholarship or prior opinions, or a discussion of venerable old cases might help the committee to determine if the nominee appreciates what the rule of law requires.

I also think nominees reasonably could be asked to explain their general theory of various clauses of the Constitution. A competent grasp of the Constitution is necessary for any judge, and a discussion about its provisions might also be a good window on the nominee's approach to law and legal reasoning. Once again, however, senators must be careful not to ask the nominee about a particular subject matter or legal issue that might come before the nominee. Not only does the Code of Judicial Ethics require current and prospective judges to refuse to pledge how they might rule in the future, the American people want independent judges who have not committed themselves to a particular ruling.

Unfortunately, the argument that political ideology should not matter, and that extensive inquiry about it is destructive of an independent judiciary, is based on an understanding of law (i.e., the rule of law) that many senators seem to reject. The prevailing attitude is that the ideological stakes are high, and to the victor go the spoils. Modern-day legal realists, and their judicial activist advisers, desperately want judges who will impose a liberal or progressive will, not law. This is how the political branches were designed to operate, but not the courts.

A senatorial litmus test on an open or evolving legal issue is even more destructive to an independent judiciary than an improper inquiry about the nominee's general political beliefs. Senators who admit that they are applying such a single-issue litmus test know this full well. Their clear purpose is to eliminate any shred of judicial independence with regard to some controversial legal issue like abortion that is largely settled in the law but still permits some limited room for legislative action. Urged on by special interest groups that are influential in their states, these senators want only activist nominees who will strike down legislation that is permissible under Supreme Court cases, such as parental notification statutes with judicial bypass mechanisms.

These same senators express strong opposition to recent Supreme Court decisions (and lower court judges who would follow them) that enforce any limit in the Constitution on Congress's power to legislate. The senators denounce decisions interfering with any law they sponsored on the ground that it was passed with majority support. But requiring parents to be notified when their minor child seeks an abortion (absent special circumstances) is supported by an overwhelming majority of Americans. The difference, which educated senators should know, is that judges sometimes are required to enforce limits on legislative action and sometimes they are forbidden to do so, according to the Constitution. Lower court judges must follow the rulings of the Supreme Court on these matters, but some liberal senators who pretend to stand on principle really just want progressive outcomes: they want judges to ignore liberal legislation that exceeds Congress's authority and strike down other legislation that is permissible but that they, and their interest group supporters, simply don't like.

In contrast, modern-day federalists sincerely want judges who will fight the temptation to act on political biases, and instead, adhere to a mode of judging that minimizes such influences, including careful adherence to the text and the intent of those who enacted the governing text. Some senators and liberal activists may actually believe such a code cannot be followed. To them, nominees who pledge fidelity to the rule of law are, at best, dupes who will not advance the progressive cause. At worse, such nominees are seen as dissemblers who will become "conservative judicial activists" on the court.

Senator Schumer is at least honest about his view and objectives, and there is something to be said for that. If I were a nominee, I think I would probably rather be bullied by senators over my supposed political beliefs than have my character assassinated over some trumped-up offense-as was the case with Brooks Smith and Charles Pickering. Nevertheless, both practices are destructive to the individual nominees, to the confirmation process, and to the rule of law. And both lines of inquiry fuel the tit-for-tat mentality that helps keep the confirmation wars alive.

A significant change in our collective view of the proper role of the courts is desperately needed (which should also lead to contraction in the judiciary's improper exercise of power). As difficult as that may be to foster, the federalist view is steadily gaining ground again and hearings like this one will help educate the general public about what is at stake. Men of good faith on the right and left have spoken out that ideology should not matter.

Even if it is not possible to alter senators' understanding of the proper role of the courts, the confirmation process still needs to be fixed somehow, perhaps as the result of a political truce. In my view, the President has acted with great restraint so far, perhaps too much restraint. He has a lot more tools at his disposal that he has not employed to bring attention to the judicial vacancy crisis. He could communicate to the Senate that he will call the Senate back into special session if they do not act on a sufficient number of his nominees by its next recess. Indeed, I think he should have delivered such a message last fall, when the Senate's plan of obstruction was already clear.

In addition, the President could fill the longest-standing vacancies with recess appointments under the Recess Appointments Clause, which appointments last until the end of the Senate's "next Session." See Art. II, § 2, cl. 3. A President must not abuse his power under that clause, but he needs to take some action to help the courts and change the incentives the Senate faces in doing nothing.

I would advise the President to give recess appointments to qualified individuals who are not then nominated for the life-time position. This would allow the Senate to displace the recess appointee at any time it acts to confirm a regular appointee. Such action would not interfere with the Senate's deliberations, but it would undermine the liberal activists who urge the Senate majority to inaction.

If nothing changes in the confirmation process, the legal realists' understanding may become more and more of a self-fulfilling prophesy: only those who behave as political ideologues will be appointed. These are the seeds the Senate majority is sowing now.

Effects of Prolonged Judicial Vacancies on the Courts and the Administration of Justice

The sustained number of judicial vacancies, particularly in the federal appellate courts, is straining the judiciary as never before. In short, the political process and partisan delays risk substantial harm to our justice system.

Although the effect of prolonged judicial vacancies on the courts and the administration of justice is obviously related, it is possible in theory for the remaining judges and their staffs to simply work much harder and more efficiently in an attempt to ensure that the administration of justice is not affected by the Senate's bad faith. This is certainly what the courts have attempted to do. Their level of success is hard to evaluate for some reasons that are explained below, but also because there is a qualitative aspect of administration of justice that is exceedingly difficult to measure.

That said, the federal judiciary is a thoroughly professional institution which is supervised by the very able Chief Justice of the United States. It is aided by many career staff attorneys, judicial law clerks, and administrative personnel. The judicial system can adequately handle a relatively low number of vacancies on a circuit court as well as a district court vacancy in a judicial district where there are many other district judges. (A district court vacancy in a one- or two-judge judicial district, however, presents severe problems.) Likewise, the larger district and circuit courts can adequately handle a short period when there are more than a few vacancies.

When vacancy rates increase in a given court, the Judicial Conference of the United States may declare a judicial emergency for that court (based on guidelines it has developed). This has been done increasingly over the past several years. Nearly 40% of the current judicial vacancies have been classified by the Judicial Conference of the United States as "judicial emergencies." Pursuant to court rules in effect in many judicial districts or circuits, this permits certain emergency rules to operate within that court.

For example, an appellate court must generally decide cases in three-judge panels. Most appellate courts sit to hear oral argument once per month for about four days in randomly-shuffled three judge panels. A sixteen member court with only nine judges (as is the case in the Sixth Circuit, which covers all of Michigan, Ohio, Kentucky, and Tennessee) can form only three panels per month instead of five if it sticks to its active judges alone. Court rules normally in effect allow panels to be formed with two active members of the court and one senior or visiting judge-assuming the court can find visiting and senior judges willing to regularly take on that burden. Emergency rules may allow a panel to be formed with only one active judge and two senior or visiting judges.

The Ninth Circuit panel that decided the "Pledge of Allegiance Case," Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002), was composed of one active judge and two senior judges. Circuit rules may also allow the senior or visiting judge that sat on the original panel to sit on the "en banc" panel if the entire court reconsiders the decision. In the Ninth Circuit, where the entire court does not sit on "en banc" rehearing panels, this may further skew the jurisprudence of the court.

Another change the emergency rules may allow is for two judges to rule on motions panels and certain types of summary dispositions if they both agree on the result. At first blush, it may not be clear why this presents a problem since two judges can overrule a third judge who might be assigned in the normal course of events. But there is a reason why three judges are on normal motions and summary disposition panels. The third judge may spot an issue that the first two judges may not notice, and he may convince one of them to change his mind or send the case to the oral argument calendar. In the Fifth Circuit, where I served as a law clerk, any one judge on a summary disposition "screening" panel could send the case to the oral argument docket. A third judge obviously increases the likelihood of that happening.

It is impossible to quantify how often the emergency rules might affect the outcome or handling of a case in the federal courts, but several prominent federal judges are concerned about interference with their normal procedures. Chief Judge Douglas Ginsburg of the D.C. Circuit Court of Appeals explained a few months ago that the court's "ability to manage [its] workload in a timely fashion will be seriously compromised" if it has to operate with only eight of its twelve members for much longer. Chief Judge Ginsburg then catalogued the reduced number of oral argument cases that will be heard in the circuit in the 2002-2003 term and the change in composition and duration of emergency panels. He concluded his remarks with a somber note: "[I]t is clear that the delay [in confirmations] has begun to jeopardize the administration of justice in this Circuit." See Chief Judge Ginsburg's circuit conference remarks reprinted in The Circuit Voice (Summer 2002), found on the D.C. Circuit's website, http://www.cadc.uscourts.gov/.

The Circuit Judge I had the great pleasure to serve early in my career, Edith Jones, recently published a novel type of workload study in the Texas Tech Law Review that provides some additional and interesting insights. See Hon. Edith H. Jones, A Snapshot of A Fifth Circuit Judge's Work: Boutique Justice, 33 Tex. Tech L. Rev. 529 (2002). Judge Jones's study is not intended to catalogue all of the work she did during the study period of three months, because she excludes many categories of work she performs. For this reason, it is not intended to show the total number of hours she worked-as a lawyer does in private practice. Instead, Judge Jones set out to categorize the type of cases she handled during the study period, note the number of cases in each category and relative time she spent on each type (excluding some periods of time such as oral argument). She also explained the methods her circuit has developed to expedite the relatively repetitious or easy cases so that the court could stay on top of its docket.

To her great credit, Judge Jones does not complain about her workload (which she downplays in her article despite the tremendously long hours I know she works), and she believes her court can manage fairly well with at least fifteen active judges on the seventeen-member court. Yet, her article still highlights some problems with the few vacancies on her court and suggests graver problems for other circuits.

For example, Judge Jones confirmed that the average number of oral argument cases heard by each judge in a year has not varied significantly in over fifteen years. That number is approximately 140. These are the hardest cases, or at least those where the judges believe that a lawyer's argument may be critical. Judge Jones confirms that the "lawyers' appearance has been critical to our decisionmaking" in a significant number of the oral argument cases. Id. at 536. Senior judges are used whenever possible in the Fifth Circuit already. So, even with only two vacancies on the court, the total number of cases that can be scheduled for oral argument is substantially decreased. A fair number of those cases decided without oral argument might have been resolved differently.

Judge Jones explained further that "[w]hat has increased phenomenally during [her] tenure is the volume of the summary calendar." Id. at 538. The circuit has come up with some novel and interesting ways of expediting these cases that are determined to be less complicated, legally or factually. One method used in several circuits is for the circuit staff attorneys to prepare memos on the cases that appear to them to be routine. Those cases are distributed randomly to different "screening" panels. If the first judge on the distribution list agrees that it is a routine case, she drafts an opinion and presents it to the other judges in turn. The two other judges on that screening panel do the same thing with their third of cases. Any judge on the panel may review the entire record in the case and send it to the oral argument calendar, but that happens with few cases. No doubt this is principally because the circuit staff attorneys and first reviewing judge got it right, but it is probably also due in part to the fact that the cases placed on the screening panels receive less attention.

Given that the average number of oral argument cases per judge is fixed and the volume on the summary calendar has increased phenomenally, that means an increasing percentage of the circuit's caseload is decided on the summary calendar. Academics have criticized many of the case handling techniques like the one described above. Although I believe the academic criticism is largely uniformed, it is hard to deny that less attention is paid to these cases. (We all must prioritize our work, except perhaps in academia. Would the academics prefer the courts to fall further and further behind on their dockets?) Yet, the only way for a circuit to handle the extra workload that additional vacancies pose is to increase even further the percentage of cases disposed of on the summary calendar.

Judge Jones acknowledges this point with a warning:

[T]he addition or subtraction of a single screening panel affects a large percentage redistribution of the summary calendar among the active judges. Such a redistribution may occur, for good or ill, as a group of Fifth Circuit judges begins to take senior status in the next few years. If replacements are not speedily confirmed, the per-active-judge burden of the summary calendar will escalate and begin seriously to impinge on the time necessary to address the oral argument docket cases. Id.

The situation in other circuits has already passed the point at which oral arguments are canceled and judges must spend less time on those that are held. The D.C. Circuit has a 33% vacancy rate. The Ninth Circuit has an 18% vacancy rate. And the Sixth Circuit has the highest vacancy rate at 44%.

There are approximately 55,000 appeals filed in federal courts of appeals per year, and the circuit courts generally do not have the discretion to refuse to take such cases. Fifteen percent of that total is 8,250. Who will handle those appeals? How will the work get done? Through the increased use of the summary calendar and emergency procedures, a court may attempt to keep up with its normal flow of cases. But sustained periods of high vacancy on some courts overwhelm even the most diligent courts.

One disturbing possibility is that the emergency rules in place in some circuits also permit judicial manipulation of the docket. The emergency rules may bypass the normal random assignment of judges, and often allow the chief judge to assign visiting and senior judges to panels of his choosing. The rules also increase the chance that cases will not be assigned randomly either. There have been questions raised in several circuits regarding possible manipulation of the rules. Even the appearance of judicial manipulation is disturbing.

One judge in the Sixth Circuit took the extraordinary step of questioning the timing of the en banc hearing of the two University of Michigan racial preference cases in an appendix to his dissent in the first of the cases to be decided. See Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002) (dissent by Boggs, J.). Judge Danny Boggs's criticism has been echoed by several newspapers and commentators. In short, the chief judge waited before he circulated the en banc request until two judges who were appointed by Republicans had taken senior status and would be ineligible to sit with the full court. With the circuit court at half its normal complement of judges, the case was then scheduled and heard. It was decided months later while the Senate Judiciary Committee refused to schedule any hearings for the judges who had been nominated to fill the vacancies. See, e.g., Editorial, The Wall Street Journal, May 17, 2002, A.10; Thomas Bray, "Media see no evil at 6th Circuit," The Detroit News, May 26, 2002, A.17. Judge Boggs noted other irregularities in the handling of the case as well.

Part of the Sixth Circuit controversy is related to the fact that the court reached a result in the Grutter case in conflict with every other circuit. In an extraordinary writ, the students who are challenging the racially preferential admissions policy asked the Supreme Court last week to take the remaining case, Gratz v. Bollinger, away from the Sixth Circuit and decide both cases without further action by that court. Hopefully, the Supreme Court will hear the two cases and remove the cloud that hangs over the proceedings in the Sixth Circuit. But the Senate's inaction with regard to the Sixth Circuit has allowed such a cloud to develop. At its worst, the Senate intended this result. At best, the Senate has enabled such a controversy to arise through its sloth or callous refusal to act. Neither indictment is particularly attractive.

Conclusion

The judicial confirmation process is at a new and disturbing low. Ten Democrats on the Senate Judiciary Committee and the current Senate leadership are holding numerous judicial nominees hostage in an attempt to undue the consequences of the last presidential election, and apparently, in an attempt to hold vacancies open for liberal judicial activists.

The immediate harm to the administration of justice is hard to quantify, but it is real, and evidence of it is growing as the judicial confirmation delays stretch on. The long-term harm from the politicized confirmation process to the courts as an institution is even more grave. If the rule of law is to survive in its traditional form, the judicial confirmation process must be radically changed.