Today the President outlined his plan to ensure timely
consideration of judicial nominees. The President calls on the Senate
and the Judiciary to join him in adopting this plan and applying it
both now and in the future, no matter who is President or which party
controls the Senate. The objective is to fix, on a permanent and
bipartisan basis, a judicial confirmation process that is clearly
broken.
The Current Crisis
There is a vacancy crisis in the federal Judiciary. As of
this week, there are 79 vacancies out of the 849 authorized federal
judgeships, a 9% vacancy rate. The 12 regional federal appeals courts
face a particularly serious crisis, with 28 vacancies out of 167
judgeships, a 17% vacancy rate.
Chief Justice Rehnquist's 2001 Year-End Report on the Federal
Judiciary, issued when there were 94 vacancies, called the situation
"alarming."
The Secretary of the Judicial Conference of the
United States, which is the federal Judiciary's governing body, stated
in May 2002 that the overall shortage of federal judges is
"staggering."
The American Bar Association report in August 2002
described the status of the federal Judiciary as an "emergency
situation."
In 1998, when there were 50 judicial vacancies,
Chairman Leahy stated that the number of vacancies represented a
"judicial vacancy crisis." (AP, 10/22/98)
Caseloads in the
federal courts continue to grow dramatically. Filings in the federal
appeals courts reached an all-time high last year.
The Senate has not lived up to its responsibility to hold fair
hearings and prompt votes on judicial nominees.
The Senate has voted on only 80 of the President's 131
nominees overall and, even more problematic, has voted on only 14 of
the President's 32 appeals court nominees. By contrast, in the first
two years of the past three Administrations, 60 of the 65 appeals court
nominees were confirmed.
As of November, 15 of President Bush's
appeals court nominees will have been forced to wait more than a year
just for a hearing (many are still waiting). That number is more than
the number of appeals court nominees who had to wait a year for a
hearing in the last 50 years combined.
The Chief Justice of the United States, speaking on behalf of the
Judiciary in his 2001 Year-End Report, "ask[ed] the Senate to schedule
up or down votes on judicial nominees within a reasonable time after
receiving the nomination."
The American Bar Association report in
August 2002 stated that as a result of delays in the judicial
confirmation process, "the federal courts
. . . suffer, and so does the rule of law."
The report stated that the
Senate Judiciary Committee's refusal to allow "confirmation proceedings
in the full Senate is simply unacceptable to our notion of an
appropriate and constitutional nomination process" and added: "Vote
them up or down, but don't hang them out to dry."
The 2000 report
of the bipartisan Citizens for Independent Courts stated that "the
views of individual senators, while vital, should not be allowed to
undermine collective decision-making in an open, deliberative process"
and stated that "the Senate process should proceed expeditiously to a
committee hearing, committee review and voting, and floor consideration
and voting."
The President's Proposal
This President's plan requires specific commitments from everyone
involved in the nomination and confirmation of federal judges:
First, the President calls on federal court of appeals and
district court judges to notify the President of their intended
retirement dates at least a year in advance whenever possible. Because
the nomination and confirmation of a federal judge can be a lengthy
process even under the best of circumstances, advance notice is
necessary to prevent extended unnecessary judicial vacancies. The
President's call to the Judiciary builds on existing Judicial
Conference recommendations and is intended to create a seamless process
whereby a new federal judge is ready to take the bench at or near the
time a sitting federal judge retires.
Second, Presidents should submit a nomination to the Senate
within 180 days of receiving notice of a federal court vacancy or
intended retirement. This would help expedite the process by which
home-State Senators, Representatives, bar leaders, and others provide
their recommendations and evaluations of possible judicial candidates
to the President, while leaving ample time for Presidents to vet and
choose nominees of the highest quality.
Third, the President calls on the Senate Judiciary Committee
to hold a hearing within 90 days of receiving a nomination. The
Committee has engaged in too many delays of too many nominees for too
many years. A strict deadline, which will apply no matter who is
President and which party controls the Senate, is the best way to
ensure that judicial nominees are promptly and fairly considered.
Ninety days is more than enough time for the Committee to conduct any
necessary research before holding a hearing.
Fourth, the President calls on the full Senate to hold an
up-or-down floor vote within 180 days of receiving a judicial
nomination. That is a generous period designed to give both the
Committee and the full Senate ample time to evaluate nominees and
answer any questions they may have. And all Senators will have an
opportunity to have their voices heard and their votes counted.