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Faster Pace Needed for Federal Judicial Confirmations

Rebecca Love KourlisRussell Wheeler Posted in Featured, Informed Opinions, Quality Judges

In mid-November, President Obama nominated Raymond P. Moore, a federal public defender, for a vacancy on the United States District Court of Colorado, which will open with the new year. Moore’s name was given to the president by a screening committee developed by Senators Mark Udall and Michael Bennet, designed to provide highly qualified candidates for consideration as possible nominees. Despite the fact that the process by which Moore was nominated mirrors versions used by twenty-one other states, there is concern that he may face a lengthy confirmation period, which has become a trend during Obama’s presidency. Russell Wheeler, a visiting fellow at the Brookings Institution and an IAALS board member, and I recently penned an op-ed in the Denver Post about this lack of prompt consideration and the dangers it may pose for the federal judiciary.

Obama has been slow to send nominations to the Senate and the Senate has obstructed and delayed the confirmation process, leading to a rise in district court vacancies; sixty district court vacancies exist today, up from 40 when Obama was inaugurated. At this stage of President George W. Bush’s first term, 97 percent of his nominations had been confirmed, compared to only 78 percent of Obama’s nominations. Adding to the problem, Obama’s nominations have waited 85 days longer to reach a floor vote than Bush’s, even though those eventually approved have had less opposition. While nominations have languished in Congress, 9 percent of the federal bench is vacant, with “19 more seats expected to open up soon.” By implementing time deadlines throughout the nomination and confirmation process, many of the current problems may be alleviated.

At the moment, Colorado’s federal district court docket receives high marks for time to disposition, but a delay in Moore’s confirmation to the bench could derail the court’s progress and threaten its ability to fairly and expeditiously resolve the cases before it. In order to forestall a crisis in the federal justice system, fully staffing the courts must become an imperative of President Obama and Congress moving into the new year and beyond.

  • Adkins9b

    How realistic do you think are the chances of implementation of “time deadlines” on the process?  If the Congress and the President cannot agree about nominees, how can they agree about the process?  I like your idea but am discouraged by the present state of affairs.

  • Rebecca Love Kourlis

    We, too, are discouraged. Truly institutionalizing time deadlines would likely require a constitutional amendment. However, an agreement between the Senate and the President could be a win-win approach. The President would have to agree that the White House would act upon home state nominations within a given time frame, and the Senate would have to agree to act upon the President’s nominations within a given time frame. In both cases, there would have to be an ‘or else’ provision that would become operative once the time deadline expired. Whether there is the political will necessary to implement such an agreement is quite another question. Federal court vacancies do indeed disadvantage all litigants and stall the process. There is nothing political about that reality. At IAALS, we are in favor of using screening committees that have rules of procedure specifying deadlines for the committee’s work and the Senators’ submission of proposed nominees. An extension of this deadline-driven process for the President and Senate makes sense, and having a clean process for review and consideration would likely save time for all parties concerned. Maybe this would be something on which our otherwise contentious leaders could agree.

  • Russell Wheeler

    The idea of timetables has been around for some time. President George W. Bush proposed that the president agree to a 180 degree deadline to make nominations and the SJC agree to hold hearings in 90 days and an up-or-down confirmation vote within 180 days. That went nowhere, in part because he proposed it on the eve of the 2002 midterms and looked like a campaign ploy, but more important, senators are loath to give up their control of the process. In his 2012 state of the union address, President Obama proposed up-or-down confirmation votes within 90 days of nomination, and that has gone nowhere as well, for the same reason. (When the American Bar Association in 2008 endorsed bi-partisan vetting committees, it pointedly declined to recommend timetables.)

    I can’t think of a mechanism—save something like fast-track treaty procedures or the Base Realignment and Closing process—in which the Congress even tries to bind itself to deadlines, and I can’t imagine it doing so for judicial nominations. There would have to be an escape clause, and it would be liberally invoked.

    Michael Shenkman has proposed that the White House post on its website a list of judicial vacancies, like that the Administrative Office posts on uscourts.gov, but add to it the dates on which the White House notified senators (or other home state party-of-the-president legislators) of a vacancy and the dates (if any) (but not the names) on which senators provided proposed candidates (and, I suppose, the dates, if any, on which the White House proposed names to senators and the dates, if any, of responses). Senators could and would contest what they regarded as inaccuracies, bringing the dispute into the open for verification.

    This sunshine tactic would give editorial writers and others additional incentives to pressure legislators and/or the White House to agree on nominees. It would put pressure on senators (and the White House) but would require no agreement as to timetables, which I believe simply wouldn’t work.