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A JUDICIARY DIMINISHED IS JUSTICE DENIED:

THE CONSTITUTION, THE SENATE, AND THE

VACANCY CRISIS IN THE FEDERAL JUDICIARY

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

OCTOBER 10, 2002

Serial No. 108

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman 

HENRY J. HYDE, Illinois 

GEORGE W. GEKAS, Pennsylvania 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

BOB BARR, Georgia 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

LINDSEY O. GRAHAM, South Carolina 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL E. ISSA, California 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

JOHN CONYERS, JR., Michigan 

BARNEY FRANK, Massachusetts 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

STEVE CHABOT, Ohio, Chairman

WILLIAM L. JENKINS, Tennessee 

LINDSEY O. GRAHAM, South Carolina 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MELISSA A. HART, Pennsylvania, 

Vice Chair

LAMAR SMITH, Texas 

J. RANDY FORBES, Virginia 

JERROLD NADLER, New York 

BARNEY FRANK, Massachusetts 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina

BRADLEY S. CLANTON, Chief Counsel 

PAUL B. TAYLOR, Counsel 

CRYSTAL M. ROBERTS, Counsel 

KRISTEN SCHULTZ, Full Committee Counsel 

DAVID LACHMANN, Minority Professional Staff Member 

(III)

C O N T E N T S 

OCTOBER 10, 2002

OPENING STATEMENT 

Page 

The Honorable Steve Chabot, a Representative in Congress From the State 

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1

The Honorable Robert C. Scott, a Representative in Congress From the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 3

WITNESSES 

Mr. John C. Eastman, Professor of Constitutional Law, Chapman University 

School of Law, and Director, The Claremont Institute Center for Constitutional Jurisprudence 

Oral Testimony ..................................................................................................... 4

Prepared Statement ............................................................................................. 6

Mr. Todd F. Gaziano, Senior Fellow In Legal Studies and Director, Center 

for Legal and Judicial Studies, The Heritage Foundation 

Oral Testimony ..................................................................................................... 19

Prepared Statement ............................................................................................. 21

Mr. Ralph Neas, President, People for the American Way and People for 

the American Way Foundation 

Oral Testimony ..................................................................................................... 31

Prepared Statement ............................................................................................. 33

Ms. Kay R. Daly, Communications Director and Spokesperson, Coalition for 

a Fair Judiciary 

Oral Testimony ..................................................................................................... 35

Prepared Statement ............................................................................................. 37

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

March 21, 2002 Letter From Rep. Steve Chabot to Sen. Tom Daschle ............... 69

Prepared Statement of Chief Judge Douglas H. Ginsburg of D.C. Circuit 

to the D.C. Circuit Judicial Conference on June 13, 2002 ................................ 71

Grutter v. Bollinger Procedural Appendix to Judge Boggs’ Dissent .................... 72

The Washington Times Article, ‘‘No Independence on Senate Judiciary Committee,’’ by Nat Hentoff, September 16, 2002 .................................................... 75

The Washington Post Editorial, ‘‘Judicial Nominations Scorecard,’’ August 

9, 2002 ................................................................................................................... 77

The National Law Journal, Volume 24, Number 46, ‘‘A Partisan Blood Sport,’’

by Todd Gaziano, August 5, 2002 ....................................................................... 79

‘‘FindLaw Forum: Why We Must Confirm Judicial Nominees and Restore 

the Courts to Good Health,’’ CNN.com, by Marci A. Hamilton, April 11, 

2002 ....................................................................................................................... 81

Letter From Chief Judge Boyce F. Martin, Jr., United States Court of Appeals 

for the Sixth Circuit, to Chairman F. James Sensenbrenner, Jr., August 

22, 2002 ................................................................................................................. 84

Letter From Chief Judge Carolyn Dineen King, United States Court of Appeals for the Fifth Circuit, to Oversight Counsel Kristen Schultz, October 

7, 2002 ................................................................................................................... 86

Page

IV

Letter From Chief Judge Edward R. Becker, United States Court of Appeals 

for the Third Circuit, to Chairman Steve Chabot, October 8, 2002 ................. 88

Letter From Chief Judge Edward R. Becker, United States Court of Appeals 

for the Third Circuit, to Chairman F. James Sensenbrenner, Jr., October 

14, 2002 ................................................................................................................. 89

Letter From Chief Judge J.L. Edmondson, United States Court of Appeals 

for the Eleventh Circuit, to Oversight Counsel Kristen Schultz, October 

8, 2002 ................................................................................................................... 90

Letter From Chief Judge Douglas H. Ginsberg, United States Court of Appeals, District of Columbia Circuit, to Chairman Steve Chabot, October 

16, 2002 ................................................................................................................. 92

Ashbrook Center for Public Affairs at Ashland University web site 

[www.ashbrook.org], ‘‘Judge Shopping by . . . Judges?’’ by John C. Eastman, editorial June 2002 ..................................................................................... 94

Article From the Herald Democrat, ‘‘Clark Still Focused on House Race,’’

October 4, 2002, submitted by the Honorable Sheila Jackson Lee, a Representative in Congress From the State of Texas ............................................. 97

Prepared Statement From the Alliance for Justice, submitted by the Honorable Jerrold Nadler, a Representative in Congress From the State of New 

York, and Ranking Member, Subcommittee on the Constitution .................... 98

Letter from Todd Gaziano, Senior Fellow In Legal Studies and Director, 

Center for Legal and Judicial Studies, The Heritage Foundation, to Chairman Steve Chabot with follow-up material ....................................................... 100

Prepared Statement From Judge Dennis Jacobs, Circuit Judge from the Second Circuit Court of Appeals and Chair of the Judicial Conference Committee on Judicial Resources ............................................................................... 103

‘‘The Judicial Vacancy Crisis: Quantity and Quality?’’ by Thomas L. Jipping, 

J.D., Concerned Women for America .................................................................. 112

(1)

A JUDICIARY DIMINISHED IS JUSTICE DENIED: THE CONSTITUTION, THE SENATE, 

AND THE VACANCY CRISIS IN THE FEDERAL JUDICIARY 

THURSDAY, OCTOBER 10, 2002

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 9:10 a.m., in Room 

2141, Rayburn House Office Building, Hon. Steve Chabot [Chairman of the Subcommittee] presiding. 

Mr. CHABOT. Committee will come to order. I am Steve Chabot, 

Chairman of the Subcommittee on the Constitution of the Judiciary 

Committee. We welcome everyone here this morning. 

This morning the Subcommittee on the Constitution convenes to 

explore the causes and effects of the current Federal judiciary vacancy crisis and the Senate’s constitutional role in confirming Federal judges. During the first 2 years of the current Administration, 

the United States circuit courts of appeals have suffered under the 

highest vacancy rates in at least a decade. During 2001 and 2002, 

the vacancy rates in the circuit courts have been 17.9 percent and 

15.6 percent respectively. Currently only 9 out of the 16 seats on 

the Sixth Circuit Court of Appeals, which happens to be the circuit 

that my community, Cincinnati, OH, is located within, have been 

filled, and the large vacancy rate on the Sixth Circuit has prompted the U.S. Administrative Office of Courts to declare a ‘‘judicial 

emergency’’ in that circuit. 

Jeffrey Sutton and Deborah Cook have been nominated for seats 

on the sixth circuit for over a year, yet the Senate Judiciary Committee has failed to even schedule a hearing on their nominations, 

a situation that The Cincinnati Post, one of the hometown newspapers in my community, has editorialized as, ‘‘an outrage.’’ The vacancy crisis in the sixth circuit has resulted in serious allegations by a dissenting judge that the chief judge improperly influenced the outcome of a case by using nonrandom procedures to 

appoint himself to the panel in Grutter v. Bollinger, a case involving the use of race in admission to the University of Michigan law 

school. Following those allegations and an inquiry from this Committee, Chief Judge Martin has now been forced to institute more 

random assignment procedures and conduct an extensive review of 

the court’s internal operating procedures. In response to this Committee’s inquiry regarding the procedures in Grutter, Chief Judge 

2

Martin wrote, ‘‘Operating within a circuit as ours, with 8 vacancies 

out of 16 positions, we, of course, have found great difficulty in 

completing enough panels.’’ That difficulty, however, cannot justify 

resorting to nonrandom assignments that threaten public confidence and the impartiality of the judiciary. 

The current Senate’s record on scheduling, holding hearings, and 

confirming judges is significantly worse than previous Senate’s 

when measured by the only valid criteria on which to compare, 

namely confirmation rates, not raw numbers of confirmations. According to The Washington Post’s August 9 editorial, ‘‘The elder 

President Bush, in a period of divided Government similar to this, 

one saw 70 of his 74 nominations [95 percent] confirmed. And 

President Clinton got 126 of his 140 nominees acted upon [90 percent] a reminder that the Senate is capable of far swifter action 

than recent practice has permitted. By contrast, President Bush 

has seen only 59 percent of his 123 nominees confirmed. More disturbing, the pernicious practice of letting nominees hang indefinitely is not improving. Eleven of Mr. Bush’s circuit court nominees 

have waited more than a year for a hearing; none of the past three 

Presidents saw any circuit court nominee suffer this indignity during his first 2 years in office.’’ The Senate Judiciary Committee remains a partisan bottleneck 

that has kept many nominees from being reported to the full Senate for an up-or-down vote. While Senator Daschle has referred to 

a ‘‘200-year-old precedent’’ when describing the tradition of not 

scheduling votes by the full Senate out of deference to the Senate 

Judiciary Committee’s failure to report names, no such 200-yearold tradition exists. And even if it did, it would appear to violate 

constitutional principles and the Founders’ understanding of the 

Constitution as articulated in the Federalist Papers. 

Article II, section 2 of the 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 

officers of the United States.’’

If there were any room for doubt regarding the role of the full 

Senate in confirming the President’s judicial nominees, Alexander 

Hamilton in Federalist Paper No. 76 makes clear that the President is, ‘‘bound to submit the propriety of his choice to the discussion and determination of a different and independent body and 

that body an entire branch of the Legislature,’’ with the emphasis 

on the entire branch of the Legislature. Hamilton’s statement 

clearly presumes that while the Senate has constitutional authority 

to establish its own rules, it cannot do so in a way that denies the 

full Senate, an entire branch of the Legislature, the opportunity to 

discuss and determine the confirmation of each of the President’s 

nominees. 

The Senate’s failure to bring Presidential nominees before the 

full body of the Senate for a vote is of great concern to this Subcommittee because of the implications for the administration of justice in the Federal courts and the preservation of the constitutional 

order envisioned by the Founders. Accordingly in this hearing, we 

hope to explore the causes and effects of the current Federal judiciary crisis and the Senate’s constitutional role in confirming Federal 

judges. 

3

I look forward to hearing from our witnesses here this morning, 

and I will now defer to the Minority side should Mr. Scott wish to 

make an opening statement. 

Mr. SCOTT. Mr. Chairman, I ask unanimous consent that a statement from the Ranking Member Mr. Nadler be inserted into the 

record. 

Mr. CHABOT. Without objection. 

Mr. SCOTT. And meanwhile I look forward to the testimony of the 

witnesses, particularly you mentioned your circuit, Mr. Chairman, 

the hearings that have been held in the circuit represented by my 

colleague in Virginia and myself, and the numerous hearings that 

have been held for circuit court vacancies in that circuit over the 

last 10 years. 

Mr. CHABOT. Thank you very much. I appreciate the comments. 

Mr. Forbes, is there anything you would like to say? 

Mr. FORBES. No. 

Mr. CHABOT. At this time I will introduce the witness panel, and 

we have a very distinguished panel here this morning, so we do appreciate you coming. 

Our first witness today will be Dr. John C. Eastman, an associate professor at Chapman University School of Law specializing 

in constitutional law, legal history, civil procedure and property. 

Mr. Eastman is also the director of the Center for Constitutional 

Jurisprudence, a public interest law firm affiliated with the Claremont Institute. 

Prior to joining the Chapman faculty in 1999, Dr. Eastman 

served as a law clerk to Supreme Court Justice Clarence Thomas 

and Judge Michael Luttig of the fourth circuit. He practiced law 

with Kirkland & Ellis, representing major corporate clients in complex commercial, contract, and consumer litigation. Dr. Eastman 

has also represented numerous clients in important constitutional 

law matters and participated in amicus curiae before the Supreme 

Court of the United States and lower courts. 

He has appeared as an expert legal commentator on C-SPAN, 

FOX News and the O’Reilly factor, and has published numerous op 

eds in newspapers across the country. 

Dr. Eastman holds a Ph.D. in government from the Claremont 

graduate school and a J.D. from the University of Chicago law 

school, and we welcome you here this morning. 

Our second witness today will be Todd Gaziano, senior fellow in 

legal studies and director of the Center for Legal and Judicial 

Studies at the Heritage Foundation, where he focuses on legal and 

judicial reform. 

Before joining the Heritage Foundation in 1997, Mr. Gaziano 

served as chief counsel to the House Committee on National Economic Growth, National Resources and Regulatory Affairs, where 

he worked on Governmentwide regulatory reform legislation for 

Chairman David McIntosh. Prior to that he served in the Office of 

Legal Counsel in the U.S. Justice Department, which provides advice on constitutional and legal issues to the President, the Attorney General and other Cabinet Secretaries. He also served as a judicial law clerk to the honorable Edith H. Jones, United States 

judge for the Fifth Circuit Court of Appeals. 

4

Mr. Gaziano received his J.D. from the University of Chicago law 

school, where he was selected as a John M. Olin Fellow in law and 

economics. And we welcome you here this morning. 

Our third witness will be Ralph Neas, president of People for the 

America Way and People for the American Way Foundation. Mr. 

Neas previously served as president of the Neas Group and executive director of the Leadership Conference on Civil Rights, LCCR. 

In 1987, he led the effort by LCCR and its members, including People for the American Way, to block the nomination of Robert Bork 

to the U.S. Supreme Court. Prior to that Mr. Neas worked as chief 

legislative assistant to U.S. Senators Edward W. Brooke and Dave 

Durenberger. 

Mr. Neas has appeared on the news shows of ABC, NBC, CBS, 

CNN and FOX and has been profiled in numerous print publications including The New York Times, Washington Post and The 

Wall Street Journal. He holds a J.D. also from the University of 

Chicago law school, and we welcome you here this morning. 

Our final witness today will be Kay Daly, communications director and spokesperson for the Coalition for a Fair Judiciary. The coalition is comprised of more than 70 grassroots organizations dedicated to supporting qualified, capable Federal judicial nominees 

who are committed to fair and accurate interpretation of existing 

law. The coalition focuses on all Federal judicial nominees, including nominees to the Court of Appeals, U.S. District Courts and the 

Supreme Court. 

Ms. Daly is nationally recognized as a communication strategist, 

speechwriter and media coach. She has worked for U.S. Senators 

Phil Gramm and Pete Wilson, U.S. Representative Fred Heineman 

and the North Carolina Republican Party in a variety of communications and policy positions. Ms. Daly also worked for the Texas 

Public Policy Foundation as chief of staff to former Reagan Justice 

Department official Tex Lazar, and as research director for Tom 

Joyner, one of North Carolina’s top-rated talk show hosts. 

Ms. Daly has completed graduate work in legislative affairs at 

George Washington University, and we welcome you here this 

morning. 

As I said, we have a very distinguished panel, and we are looking 

forward to your testimony. We would ask if possible if you could 

confine your statements to approximately 5 minutes. We actually 

have a lighting system. When the yellow light comes on, that 

means you have 1 minute to wrap up. When the red light comes 

on, if you could wrap up your testimony, we would appreciate it, 

and then we will follow up with questions. And we will start with 

Dr. Eastman. 

STATEMENT OF JOHN EASTMAN, PROFESSOR OF CONSTITUTIONAL LAW, CHAPMAN UNIVERSITY SCHOOL OF LAW, AND 

DIRECTOR, THE CLAREMONT INSTITUTE CENTER FOR CONSTITUTIONAL JURISPRUDENCE 

Mr. EASTMAN. I want to acknowledge first what an extraordinary 

hearing this is, a Subcommittee of the House of Representatives inquiring into a matter that is textually committed by the Constitution to the other body, the Senate of the United States. But, of 

course, the House of Representatives does have an important role 

5

in the overall appointments process. It can propose legislation to 

confer the power of appointment for lower court judges in the 

President alone under article II of the Constitution. Moreover, the 

judicial seats that have been vacant for this entire session of Congress have been not only authorized, but mandated by law, yet that 

law is clearly not being followed. It is as if Senator Leahy thinks 

he has been vested with line item veto power and has used his own 

red pen to singlehandedly strike out 15 percent of the Federal appellate court bench. 

But this hearing is about much more than the vacancy created 

by the Senate’s inaction. The unprecedented assertion of power by 

the Senate is threatening two of the most core principles of our 

constitutional system of Government. It is intruding upon the 

President’s power to nominate judges, in violation of the separation 

of powers. And it is threatening the independence of the judiciary 

and, as a result, the very rule of law itself. 

Now, my fellow panelist Ralph Neas is going to tell you that the 

Senate is just being diligent in its advice and consent role, but 

quite frankly, his view of that role is fundamentally mistaken. He 

claims in his prepared testimony that the Senate has a coequal role 

in nominating judges. That claim is simply not consistent with either the Constitution’s text or the history of the advice and consent 

power. 

As I describe in greater detail in my prepared testimony, the 

Framers of the Constitution assigned to the President the sole 

power to nominate and the primary power in appointing judges. 

They did this because they wanted the accountability that came 

with placing the appointment power in a single individual. And 

they specifically refused to give the power of appointment to the 

Senate because they knew the tendency of public bodies to feel no 

personal responsibility and to give full play to intrigue and cabal. 

Now, as with every aspect of the separation of powers, there are, 

of course, checks on that Presidential power, the requirement of advice and consent to the Senate for principal officers and is a default 

for inferior officers. But when we view this check, mere check in 

the Senate as a coequal share in the power of appointment itself, 

as Mr. Neas does, we grant to the Senate a power that does not—

that the Constitution does not confer, opening the door to the very 

threat of cabal and partisanship that the Founders feared. What is 

worse, the ideological litmus test some Senators would impose with 

their new-found power is one that would turn a blind eye to the 

limits on power that the Constitution itself imposes on those very 

same Senators. 

This threat to an independent judiciary and its ability to check 

a Congress bent on exercising power that is not authorized by the 

Constitution is every bit as great as the threat raised by the Courtpacking scheme advanced by President Roosevelt in the 1930’s and 

every bit as dangerous to the very idea of limited constitutional 

Government. 

So what can this Committee do? As I alluded to at the beginning, 

it can consider legislation that would give sole appointment power 

to the President alone whenever the Senate has failed to act within 

a reasonable time in confirming or rejecting his nominees. That 

6

1William H. Rehnquist, 2001 Year-End Report on The Federal Judiciary

<www.supremecourtus.gov/publicinfo/year-end/2001year-endreport.html> (visited May 23, 2002) 2 Reaction of Sen. Patrick Leahy, D-Vt., Ranking Member, Senate Judiciary Committee,To 

Chief Justice Rehnquist’s Year-End Report On The Federal Judiciary, Dec. 31, 1997 (visited 

June 2, 2002) <http://leahy.senate.gov/press/199801/980101.html>. See further 143 CONG. REC. 

S2518 (1997) (remarks of Mr. Leahy). 3Letter to Caleb Wallace, (Aug. 23, 1785) in MADISON: WRITINGS 39, 42 (J. Rakove ed. 1999). 4 U.S. CONST. art. II § 2 cl. 2; art. III § 1. 

would ensure that the Senate’s check on Presidential power does 

not itself become a blank check. 

I thank this Committee for the opportunity to help shed some 

light on this serious problem, and I hope that your hearing today 

will demonstrate to the country how critical is the constitutional 

crisis that has been perpetrated by the Senate’s abject refusal to 

perform its advice and consent role for a significant number of the 

President’s nominees to the Circuit Courts of Appeals. 

Thank you, Mr. Chairman. 

Mr. CHABOT. Thank you very much, Mr. Eastman. 

[The prepared statement of Mr. Eastman follows:]

PREPARED STATEMENT OF DR. JOHN C. EASTMAN

Good morning, Chairman Sensenbrenner and other members of the House Judiciary Subcommittee on the Constitution. I am delighted to be here this morning to 

offer some historical and constitutional perspective on the current stalemate in the 

Senate Judiciary Committee over confirmations of circuit court judges, its impact on 

the federal judiciary and, perhaps more importantly, its threat to the separation of 

powers. 

As of yesterday, seventeen months have passed since President Bush nominated 

his first group of circuit court judges, only three have been confirmed. Several have 

not even received a hearing, yet the number of vacancies on the federal bench has 

grown to crisis proportion. Chief Justice William Rehnquist recently complained of 

an ‘‘alarming number of judicial vacancies,’’ creating a real strain on the courts.1

Even Senator Patrick Leahy, who, as Chairman of the Senate’s judiciary committee 

is largely responsible for the current logjam, previously referred to a judicial vacancy ‘‘crisis’’ when the number of vacancies on the bench was about half what it 

is today, contending that those who delay or prevent the filling of vacancies were 

‘‘derelict[ in their] duty,’’ and delaying or preventing the administration of justice. 2

More fundamentally, the judicial vacancy crisis is threatening to hamper the ability of the courts to perform their primary role as an important check on the elected 

branches of government, protecting individual rights against tyrannical majorities, 

and insuring that the legislative and executive branches do not exceed the scope of 

authority delegated to them by the Constitution. As James Madison noted two years 

before the Constitutional Convention, the ‘‘Judiciary Department merits every care’’

because it ‘‘maintains private Right against all the corruptions of the two other departments....’’ 3

Of course, Senator Leahy and his Democrat colleagues in the Senate claim that 

they are simply fulfilling their own constitutional obligation to give ‘‘advice and consent’’ to the President in the nomination process and to insure that those nominees 

who are ‘‘hostile’’ to their view of what the law ought to be are not confirmed to 

lifelong seats on the bench. The resulting standoff reveals important differences of 

opinion over the role of the Senate in the appointment process. But that disagreement in turn masks a profound division over the proper role of government in general, and even the very notion of the rule of law. As is often the case, it is well to 

begin with a review of the founders’ understanding of the process in assessing this 

disagreement. 

I. THE FRAMERS OF THE CONSTITUTION ASSIGNED TO THE PRESIDENT THE PRE-EMINENT

ROLE IN APPOINTING JUDGES. 

A. The President Alone Has The Power to Nominate 

Article II of the 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 such inferior courts as the Congress may from time to time ordain and establish].’’ 4 As the text of the provision makes explicitly clear, the power 

7

5See also Weiss v. United States, 510 U.S. 163, 185 n. 1 (1994) (Souter, J., concurring) (‘‘the 

President was . . . rightly given the sole power to nominate’’). 6 2 M. Farrand, Records of the Federal Convention 41 (1911). 

7 Id. 

8 Id. at 42. Mason’s objections were actually more complicated. He argued that the President 

should not appoint judges because the judges might try impeachments of the President. This 

problem was later avoided by having the Senate try impeachments with the Chief Justice of 

the Supreme Court merely presiding. See U.S. CONST. art. I § 3 cl. 6. Governeur Morris, in replying to Mason, argued that impeachments should not be ‘‘tried before the Judges.’’ FARRAND, supra note 6 at 41–42. Mason also worried that ‘‘the Seat of Govt must be in some state,’’ and 

the President would form personal attachments to people in that state, which might exclude citizens of other states from the federal bench—an understandable objection from an antifederalist 

like Mason. This problem was at least partly obviated by placing the capital in a federal district 

which would not be subject to the jurisdiction of any state. See U.S. CONST. art. I § 8 cl. 17. 9FARRAND, supra note 6 at 42. 10 Id. 11 Id. at 43. 12 Id. at 42. 13 Id. at 43. 14The Convention voted by state. Georgia abstained from this vote, and Rhode Island never 

sent a delegate. Other states’ delegates were sometimes absent for various reasons—for instance, although the Convention had been under way for more than a month, New Hampshire’s 

delegates had still not arrived. In addition, this debate came during one of the lowest points 

of the Convention, when the differences between the delegates was at its severest. New York 

delegates, Robert Yates and John Lansing, had left the Convention on July 10, opposed to all 

its proceedings. New York’s third delegate, Alexander Hamilton, had left ten days earlier. See 

CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA 140 (Book of the Month Club, 1986) 

(1966). The day Lansing and Yates left the Convention, Washington wrote to Hamilton that he 

‘‘almost despaired’’ of the Convention’s success. See id. at 185–186. (Hamilton returned to the 

Convention in September and was New York’s only signer). Thus the vote on July 18 was MasContinued

to choose nominees—to ‘‘nominate’’—is vested solely in the President,5 and the 

President also has the primary role to ‘‘appoint,’’ albeit with the advice and consent 

of the Senate. The text of the clause itself thus demonstrates that the role envisioned for the Senate was a much more limited one that is currently being claimed. 

The lengthy debates over the clause in the Constitutional Convention support this 

reading. According to Madison’s notes, an initial proposal on July 18, 1787, to place 

the appointment power in the Senate was opposed because, as Massachusetts delegate Nathaniel Ghorum noted, ‘‘even that branch [was] too numerous, and too little 

personally responsible, to ensure a good choice.’’ 6 Ghorum suggested instead that 

Judges be appointed by the President with the advice and consent of the Senate, 

as had long been the method successfully followed in his home state. James Wilson 

and Governeur Morris of Pennsylvania, two of the Convention’s leading figures, 

agreed with Ghorum and moved that judges be appointed by the President. 

In contrast, Luther Martin of Maryland and Roger Sherman of Connecticut argued in favor of the initial proposal, contending that the Senate should have the 

power because, ‘‘[b]eing taken fro[m] all the States it [would] be best informed of 

the characters & most capable of making a fit choice.’’ 7 And Virginia’s George 

Mason argued that the President should not have the power to appoint judges because (among other reasons) the President ‘‘would insensibly form local & personal 

attachments . . . that would deprive equal merit elsewhere, of an equal chance of 

promotion.’’ 8

Ghorum replied to Mason’s objection by noting that the Senators were at least 

equally likely to ‘‘form their attachments.’’ 9 Giving the power to the President would 

at least mean that he ‘‘will be responsible in point of character at least’’ for his 

choices, and would therefore ‘‘be careful to look through all the States for proper 

characters.’’ For him, the problem with placing the appointment power in the Senate 

was that ‘‘Public bodies feel no personal responsibility, and give full play to intrigue 

& cabal,’’ 10 while if the appointment power were given to the President alone, ‘‘the 

Executive would certainly be more answerable for a good appointment, as the whole 

blame of a bad one would fall on him alone.’’ 11

Seeking a compromise, James Madison suggested that the power of appointment 

be given to the President with the Senate able to veto that choice by a 2⁄3 vote.12

Another compromise was suggested by Edmund Randolph, who ‘‘thought the advantage of personal responsibility might be gained in the Senate by requiring the respective votes of the members to be entered on the Journal.’’ 13 These compromises 

were defeated, however, and the vote on Ghorum’s motion—that the President nominate and with the advice and consent of the Senate, should appoint—resulted in a 

4–4 tie.14 The discussion was then postponed. 

8

sachusetts, Pennsylvania, Maryland and Virginia in favor of Ghorum’s motion, and Connecticut, 

Deleware, North Carolina and South Carolina against. 15See THE FEDERALIST NO. 10 & 51 (C. Rossiter ed. 1961). 16FARRAND, supra note 6 at 81. 17 Id. 18 Id. at 539. 19 Edmond v. United States, 520 U.S. 651, 659 (1997). 20FARRAND, supra note 6 at 81. 21THE FEDERALIST NO. 76 at 455 (C. Rossiter, ed. 1961). 22 Id. at 456 (emphasis in original).

When the appointment power was taken up again on July 21, the delegates returned to their previous arguments. One side argued that the President should be 

solely responsible for the appointments, because he would be less likely to be 

swayed by ‘‘partisanship’’—what Madison’s generation called ‘‘faction’’ 15—than the 

Senate. The other side opposed vesting the appointment power in the President for 

a similar reason: he would not know as many qualified candidates as the Senate 

would, and might still be swayed by personal considerations or nepotism. 

The convention delegates were primarily concerned about improper influence in 

the appointments process, and most of the debate centered on whether assigning the 

appointment power to the President or to the Senate would serve as a better check 

on that influence. Those who, like Madison, argued that the President should have 

the sole power of appointment believed that this procedure would best prevent such 

political bargaining. As Edmund Randolph noted, ‘‘[a]ppointments by the Legislatures have generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications.’’ 16 But those who opposed this idea, and instead wanted the Senate to have the power of appointment, 

did not argue that the Senate should have the power in order to control the development of case law or regulate judicial philosophy. Instead, they feared that the President would be ‘‘more susceptible to caresses & intrigues than the Senate,’’ as Oliver 

Ellsworth of Connecticut contended.17

In the end, the Convention agreed that the President would make the nominations, and the Senate would have a limited power to withhold confirmation as a 

check against political patronage or nepotism. Governeur Morris put the decision 

succinctly: ‘‘as the President was to nominate, there would be responsibility, and as 

the Senate was to concur, there would be security.’’ 18 As the Supreme Court subsequently recognized, ‘‘the Framers anticipated that the President would be less vulnerable to interest-group pressure and personal favoritism than would a collective 

body.’’ 19 No one argued that the Senate’s participation in the process should include 

second-guessing the judicial philosophy of the President’s nominees or attempting 

to mold that philosophy itself. Indeed, such a suggestion was routinely rejected as 

presenting a dangerous violation of the separation of powers, by allowing the Senate 

to control the President’s choices and, ultimately, intrude upon the judiciary itself. 

Madison, for instance, arguing in defense of his suggested compromise—that a 2⁄3

vote of the Senate could disqualify a judicial nomination, but otherwise giving the 

President a free hand-noted that

The Executive Magistrate wd be considered as a national officer, acting for and 

equally sympathizing with every part of the U. States. If the 2d branch alone 

should have this power, the Judges might be appointed by a minority of the 

people, tho’ by a majority, of the States, which could not be justified on any 

principle as their proceedings were to relate to the people, rather than to the 

States....20

In short, by assigning the sole power to nominate (and the primary power to appoint) judges to the President, the Convention specifically rejected a more expansive 

Senate role; such would undermine the President’s responsibility, and far from providing security against improper appointments, would actually lead to the very kind 

of cabal-like behavior that the Convention delegates feared. 

This understanding of the appointment power was reaffirmed during the ratification debates. In Federalist 76, for example, Alexander Hamilton explained at length 

that ‘‘one man of discernment is better fitted to analyze and estimate the peculiar 

qualities adapted to particular offices, than a body of men of equal or perhaps even 

of superior discernment.’’ 21 Noting that a President would ‘‘have fewer personal attachments to gratify, than a body of men who may each be supposed to have an 

equal number,’’ 22—or as we would say today, that the President will be swayed by 

fewer political pressure groups than the Senate—Hamilton concluded: 

In the act of nomination, [the President’s] judgment alone would be exercised; 

and as it would be his sole duty to point out the man who, with the approbation 

9

23 Id. at 456–457. 24 Id. at 456. 25Story, Commentaries on the Constitution of the United States § 1525 (emphasis added) 

(1833). 26Story, supra note 25 at § 1523. 27 James Iredell, Debate in the North Carolina Ratification Convention, July 28, 1788, re- printed in 4 THE FOUNDER’S CONSTITUTION 102 (P. Kurland & R. Lerner eds. 1987). 28Letter to Roger Sherman (July 20, 1789) in id. at 106–107. John Adams was a lifelong 

champion of judicial independence. See John Adams, The Independence of The Judiciary: A Controversy between William Brattle And John Adams (1773) reprinted in 2 THE WORKS OF JOHN

ADAMS 511 (Easton Press, 1992). He was the author of the Massachusetts state constitution, 

which Ghorum cited as his precedent for giving the President the power to appoint, and the 

Senate to advise and consent on, judicial nominees. See 1 PAGE SMITH, JOHN ADAMS 440 (1962) 

Continued

of the Senate should fill an office, his responsibility would be as complete as 

if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And 

as no man could be appointed but on his previous nomination, every man who 

might be appointed would be, in fact, his choice.23

Note the very limited role that the Senate serves in Hamilton’s view—which, of 

course, echoes the views expressed at the Constitutional Convention by both those 

who defended and those who opposed giving the appointment power to the President. In the founders’ view, the Senate acts as a brake on the President’s ability 

to fill offices with his own friends and family members rather than qualified nominations, but beyond that, the element of choice—the essence of the power to fill the 

office—belongs to the President alone. The Senate has the power to refuse nominees, but in the Constitutional scheme it has no proper authority in picking the 

nominees—either through direct choice or through logrolling and deal-making. 

Hamilton was not so ignorant as to deny that deal-making would be the process 

by which things got done in the Senate—as he writes, legislatures are very often 

prone to ‘‘bargain[s]’’ by which one party says to another, ‘‘ ‘Give us the man we wish 

for this office, and you shall have the one you wish for that.’ ’’ 24 But this legislative 

propensity was, for Hamilton, a primary reason for giving the appointment power 

to the President instead of the Senate. Placing the nomination power in the President alone would, he argued, cut down on the degree to which political bargains in 

the Senate influenced the choice of candidates, because under the Constitutional 

scheme, all would understand that the power of appointment belonged in the President alone. That understanding, as we shall see, has been eroded in recent years. 

Commenting on the prevailing understanding, Joseph Story later described the 

President’s power to nominate as almost absolute. ‘‘The president is to nominate,’’ Story noted, ‘‘and thereby has the sole power to select for office.’’ 25 Story believed 

that the danger of vesting the appointment power in the Senate was greater than 

the danger of giving the power to the President alone, because ‘‘if he should . . . 

surrender the public patronage into the hands of profligate men, or low adventurers, 

it [would] be impossible for him long to retain public favour. . . . At all events, he 

would be less likely to disregard [public disapprobation] than a large body of men, 

who would share the responsibility and encourage each other in the division of the 

patronage of the government.’’ 26

B. The Framers Envisioned A Narrow Role for The Senate in The Confirmation Proc- ess. 

Of course, there is more to the appointment power than the power to nominate, 

and the Senate unquestionably has a role to play in the confirmation phase of the 

appointment process. But the role envisioned by the framers was as a check on improper appointments by the President, one that would not undermine the President’s ultimate responsibility for the appointments he made. As James Iredell— later a Justice of the Supreme Court himself—noted during the North Carolina 

Ratification Convention, ‘‘[a]s to offices, the Senate has no other influence but a restraint on improper appointments. . . . This, in effect, is but a restriction on the 

President.’’ 27

The degree to which the founders viewed the power of appointment as being vested solely in the President can be gauged by the fact that John Adams objected even 

to the Senate’s limited confirmation role, contending that it ‘‘lessens the responsibility of the president.’’ To Adams, the President should be solely responsible for his 

choices, and should alone pay the price for choosing unfit nominees. Under the current system, Adams complained, ‘‘Who can censure [the President] without censuring the senate . . .?’’ 28 The appointment power is, Adams wrote, an ‘‘executive 

10

(‘‘even with minor changes and deletions and one major change in the article dealing with religious freedom, the constitution [of Massachusetts] was Adams’ handiwork’’); DAVID

MCCOLLOUGH, JOHN ADAMS 220–222 (‘‘it was the establishment of an independent judiciary, 

with judges of the Supreme Court appointed, not elected . . . that Adams made one of his greatest contributions not only to Massachusetts, but to the country, as time would tell.’’ Id. at 222). 29 Id. at 107. See also James Madison, Speech in Congress on the Removal Power, June 16, 

1789, reprinted in RAKOVE, supra note 3 at 453, 456 (‘‘if any power whatsoever is in its nature 

executive it is the power of appointing, overseeing, and controlling those who execute the laws.’’) 30 James Wilson, Lectures on Law (1791), reprinted in id. at 110. See also Americanus (John 

Stevens Jr.), No. VII (Jan. 21, 1788) reprinted in 2 DEBATE ON THE CONSTITUTION 58, 59 (B. 

Bailyn ed. 1993) (‘‘Instead of controling the President still farther with regard to appointments, 

I am for leaving the appointment of all the principal officers under the Federal Government solely to the President....’’). 31 James Madison, Speech in Congress on the Removal Power, May 19, 1789, reprinted in 

RAKOVE, supra note 3 at 434, 436. 32Story, supra note 30 33 It might seem ironic, then, that President Washington nominated his nephew, Bushrod 

Washington, to the Supreme Court in 1798. But Justice Washington was easily confirmed and 

served a long and successful term on the Supreme Court. His most famous opinion, Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823), was an important early case interpreting the Privileges and Immunities Clause in Article V. 34THE FEDERALIST NO. 66, at 405 (C. Rossiter ed. 1961) (emphasis in original). 35This is not to say that the founding generation did not use the confirmation power as a 

political tool. It and subsequent generations have done so very frequently. See Jeffrey K. Tulis , The Appointment Power: Constitutional Abdication: The Senate, The President, and Appointments to the Supreme Court, 47 CASE W. RES. 1331 (Summer 1997). But in these confirmation 

battles, the Senate more often used its power to block nominees in opposition to the President’s policies, not in order to enforce a particular vision of the Constitution. In the original understanding, judicial philosophy was a matter for the President’s consideration. In those unusual 

cases in which the Senate did attempt to enforce an orthodoxy on the Court, the Senate was 

subjected to severe criticism. 

matter[],’’ which should be left entirely to ‘‘the management of the executive.’’ 29

James Wilson echoed this view: ‘‘The person who nominates or makes appointments 

to offices, should be known. His own office, his own character, his own fortune, 

should be responsible. He should be alike unfettered and unsheltered by counsellors.’’ 30

In discussing the analogous situation of executive appointments—such as ambassadors or cabinet members—James Madison asked, ‘‘Why . . . was the senate joined 

with the president in appointing to office . . .? I answer, merely for the sake of advising, being supposed, from their nature, better acquainted with the characters of 

the candidates than an individual; yet even here, the president is held to the responsibility he nominates, and with their consent appoints; no person can be forced 

upon him as an assistant by any other branch of government.’’ 31

The Senate’s confirmation power therefore acts only as a relatively minor check 

on the President’s authority—it exists only to prevent the President from selecting 

a nominee who ‘‘does not possess due qualifications for office.’’ 32 Essentially, it exists to prevent the President from being swayed by nepotism or mere political opportunism.33 Assessing a candidate’s ‘‘qualifications for office’’ did not give the Senate 

grounds for imposing an ideological litmus on the President’s nominees, at least 

where the questioned ideology did not prevent a judge from fulfilling his oath of office. 

C. Ideology Was Not Considered A Proper Reason for Refusing Confirmation, As 

Long As It Did Not Prevent The Nominee From Fulfilling The Judicial Oath. 

In the founders’ view, then, the Senate’s power in the confirmation of judicial appointees was extremely limited. It existed solely to prevent the President from exercising his power in an improper manner. Ideology—at least ideology of the kind that 

is unrelated to a candidate’s ability to fulfill his oath of office—simply had no place 

in the Senate’s decision. As Hamilton wrote, ‘‘It will be the office of the President 

to nominate, and, with the advice and consent of the Senate, to appoint. There will, 

of course, be no exertion of choice on the part of the Senate. They may defeat one 

choice of the Executive, and oblige him to make another; but they cannot themselves 

choose—they can only ratify or reject the choice he may have made.’’ 34 It was not 

that the founders believed the political views of judges were irrelevant; they were 

not that na ́ıve. But in their view, the President was alone responsible for his appointments, and, in turn, the ideology of those he appointed.35

There is, of course, an early case that suggests the Senate believed that it was 

appropriate to reject nominees because of their political ideology. In 1795, John Rutledge of South Carolina, former delegate to the Constitutional Convention, was nominated by President Washington to be Chief Justice of the United States. Although 

Rutledge took his seat and presided over two cases, he was never confirmed. 

11

36For more on the Jay Treaty, see Thomas A. Bailey, A Diplomatic History of the American 

People 75–82 (7th ed. 1964); James MacGregor Burns, The Vineyard of Liberty 102–105 (Vintage Books, 1983) (1982). 37Washington’s nomination of Rutledge was delivered to the Senate on December 10, 1795. 

See SENATE EXECUTIVE J. at 194 (Dec. 10, 1795). The nomination was delayed and finally rejected on December 15. See id. at 195–196. No official record exists of floor debates on the nomination. 38See David J. Garrow, Mental Decrepitude on the U.S. Supreme Court: The Historical Case 

for a 28th Amendment, 67 U. CHI. L. REV. 995, 998 (Fall, 2000) (noting that some contemporary 

observers claimed that ‘‘after the death of his Wife, his mind was frequently so much deranged, 

as to be in a great measure deprived of his senses’’). As Garrow notes, ‘‘Professor Haw concludes 

that the nomination ’was defeated primarily for political reasons,’ but even in the weeks immediately preceding the Senate’s vote, Chief Justice Rutledge’s mental health appears to have 

taken a very decided turn for the worse. In November, while riding circuit in North Carolina, 

Rutledge became seriously ill, and his illness exacerbated his depression to such an extent that 

on his way home to Charleston Rutledge apparently tried ’to drown himself at Camden’ but 

without success’’ Id. at 1000. See also Letter of James Madison to Thomas Jefferson, (Feb. 7, 

1796) in 2 THE REPUBLIC OF LETTERS 917, 919 (J. Smith ed. 1995) (‘‘There is some reason to 

think that Jno. Rutledge is not in his mind’’). But see Matthew D. Marcotte, NOTE: Advice and 

Consent: A Historical Argument for Substantive Senatorial Involvement in Judicial Nominations, 5 N.Y.U. J. LEGIS. & PUB. POL’Y 519, 538–539 (2001/2002) (arguing that allegations of Rutledge’s insanity were a tool in the partisan campaign against Rutledge). 39Letter to William Branch Giles (Dec. 31, 1795) in 9 WRITINGS OF THOMAS JEFFERSON 318 

(A. Bergh ed. 1907). 40David Mayer argues that Jefferson ‘‘gave only lukewarm support’’ to the attempt to impeach 

Chase. DAVID MAYER, THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON 273 (1994). 

Dumas Malone shares this view. DUMAS MALONE, JEFFERSON THE PRESIDENT: FIRST TERM

1801–1805 at 468–469 (1970). For an interesting evaluation of the impeachment power as a 

mechanism for redressing the problem of faction, see Jonathan Turley, Senate Trials And Factional Disputes: Impeachment As A Madisonian Device, 49 DUKE L.J. 1 (Oct. 1999). 41President Jefferson referred the question of Judge Pickering’s impeachment to the Congress 

on February 4, 1803. See 13 ANNALS OF CONG. 460 (1803). The House reported articles of 

impeachment to the Senate on March 2. Id. at 642. The Senate took up the impeachment proceedings on October 26. 13 ANNALS OF CONG. 315. The actual trial began January 4, 1804. Id.

at 317. 42 Act of July 14, 1798, 1 Stat. 596 (1798). 43 Randolph was a cousin of Jefferson’s, but while he started out as a leading member of Jefferson’s party, he ended up being Jefferson’s chief antagonist in the House. See ALF MAPP, 

THOMAS JEFFERSON: PASSIONATE PILGRIM 41–42 (1991).

Rutledge was a vocal opponent of the controversial Jay Treaty, negotiated by 

President Washington’s envoy to England—and first Chief Justice of the United 

States—John Jay.36 Shortly after his nomination, Rutledge delivered an emphatic 

and somewhat imprudent attack on the Treaty, which was supported by the Federalist majority in Congress. Rutledge’s appointment was rejected shortly thereafter 

on December 15, 1795, almost immediately after Congress resumed its work after 

a recess.37 Although the Senate’s refusal to confirm Rutledge might in part be due 

to questions about his mental stability,38 his opposition to the Jay Treaty undoubtedly played an important role in the vote. Thomas Jefferson complained privately 

that ‘‘[t]he rejection of Mr. Rutledge by the Senate is a bold thing; because they cannot pretend any objection to him but his disapprobation of the treaty. It is, of 

course, a declaration that they will receive none but tories hereafter into any department of the government.’’ 39

Jefferson’s supporters in Congress responded in kind after Jefferson was elected 

President. Attempting to expand Jefferson’s own control over the courts beyond 

what was permitted in the normal course of filling vacancies, the Jeffersonian Republicans brought articles of impeachment against Supreme Court Justice Samuel 

Chase, a Federalist opponent of the administration.40 Jefferson’s supporters in Congress had been successful in impeaching New Hampshire District Judge John Pickering for bad behavior—Pickering was insane 41—but success in impeaching him 

emboldened members of Jefferson’s party to impeach Justice Chase, who had been 

appointed in 1796 by John Adams, and had attempted to enforce the notorious Sedition Act.42 Articles of impeachment against Chase were drawn up by Virginia Congressman John Randolph of Roanoke,43 who was immediately challenged on the 

floor of the House. ‘‘[T]he streams of justice should be preserved pure and 

unsullied,’’ said one Congressman: 

The Judicial department ought to attach to itself a degree of independence. I 

am of opinion that this House possesses no censorial power over the Judicial 

department generally, or over any judge in particular. They have alone the 

power of impeaching them; and when a judge shall be charged with flagrant 

misconduct . . . I shall be at all times prepared to carry the provisions of the 

Constitution into effect, in virtue of which great transgressors are punishable 

12

44 13 ANNALS OF CONGRESS 807 (1804) (statement of Mr. Elliott). 45MALONE, supra note 40 at 469 (quoting New York Evening Post, Jan. 20, 1804). 46 13 ANNALS OF CONGRESS 808–809 (1804). 47MAYER, supra note 40 at 268–276, discusses Jefferson’s view of the proper role of ideology 

in the judiciary—a view too complex to address fully here. In brief, ‘‘Jefferson’s constitutional 

theory . . . relied upon the independence of the judiciary as a guardian of individual rights 

against executive and legislative tyranny; [so] his quarrel with the judiciary was that under the 

control of the Federalists, it failed to fulfill this vital function and had become the destroyer 

rather than the protector of the Constitution and citizens’ liberties.’’ Id. at 268. As I argue infra, 

section II, today’s attempt by Senate liberals to delve into the ideology of judicial nominees gets 

this Constitutional theory backwards: their quarrel with the judiciary is precisely that it threatens to place roadblocks in the way of the left’s attempt to increase government control over citi- zens’ lives. Where Jefferson believed the judiciary should not be independent ‘‘of the will of the 

people,’’ modern liberals want the judiciary dependent on the will of political interest groups. Witness the liberal reaction to the recall of California Chief Justice Rose Bird—an expression 

of ‘‘the will of the people’’ which the left denounced as a corruption of the rule of law by thoughtless mob rule. See Erwin Chemerinsky, Evaluating Judicial Candidates, 61 S. CAL. L. REV. 1985 

(Sept. 1988). Witness also the notion of a ‘‘living Constitution,’’ by which unelected judges exercise the power to nullify duly enacted laws based on their own unaccountable consciences. 48THE DIARY OF JOHN QUINCY ADAMS 1794–1845 at 35 (Allan Nevis ed., 1928). Adams, of 

course, would become much more familiar with such ‘‘party prosecutions’’ late in his career, 

when the House of Representatives attempted to expel him for his outspoken opposition to slavery. See WILLIAM LEE MILLER, ARGUING ABOUT SLAVERY (1996). 49MAPP, supra note 43 at 89. 50See generally Bob Woodward & Scott Armstrong, The Brethren 75–79 (1979). 

for their crimes. . . . If the resolution pass in its present form, it appears to 

me that we shall thereby pass a vote of censure on this judge, which neither 

the Constitution nor laws authorize.44

Popular outcry against Chase’s impeachment was swift. ‘‘The simple truth is,’’ one 

newspaper said, that ‘‘Mr. Jefferson has been determined from the first to have a 

judiciary, as well as a legislature, that would second the views of the executive.’’ 45

‘‘I am afraid,’’ said another Congressman, ‘‘that unless great care be taken the doctrine of judicial independence will be carried so far as to become dangerous to the 

liberties of the country.’’ 46 Randolph insisted that he was not seeking impeachment 

for ideological reasons but based on Chase’s bad behavior. In a charge to a grand 

jury in a Sedition Act case in Baltimore, Chase had let fly with a political screed 

against the Jefferson Administration, and supporters of impeachment argued that 

this demonstrated Judge Chase’s own ideological bias.47 Yet few were persuaded. To 

the Federalists, the Chase impeachment was motivated purely by the political ideology of the Jeffersonians. As John Quincy Adams wrote in his diary, ‘‘this was a 

party prosecution.’’ 48

The Senate ultimately voted not to convict Justice Chase, and the Congress 

backed away from the ideological litmus test that threatened the independence of 

the judiciary. As one commentator has noted, ‘‘[a]t that early stage of the republic, 

a successful impeachment of a Supreme Court Justice innocent of criminal activity 

probably would have left the judicial branch of the federal government forever dependent on the legislative.’’ 49 As a result, the use of impeachment to enforce political orthodoxy on the Supreme Court was abandoned. In 1970, when then-Congressman Gerald Ford denounced Justice William O. Douglas on the floor of the House 

and called for his impeachment, the suggestion was doomed from the start.50

II. THE CURRENT STATE OF THE CONFIRMATION POWER. 

A. Why Ideology Matters to The Left. 

Despite the original understanding of the Senate’s limited role in the confirmation 

process, and despite the lessons learned from these early historical flirtations with 

the use of political ideology as a criteria for judicial confirmation, the Senate today 

appears bent on using its limited confirmation power to impose ideological litmus 

tests on presidential nominees and even to force the President to nominate judges 

preferred by individual Senators, thus arrogating to itself the nomination as well 

as the confirmation power. 

The Senate’s expanded use of its confirmation power should perhaps come as no 

surprise. As a result of the growing role of the judiciary—and of government in general—in the lives of Americans today, the Senate’s part in the nomination process 

has become a powerful political tool, and, like all powerful political tools, it is the 

subject of a strenuous competition among interest groups every time the President 

seeks to fill a judicial vacancy. Nevertheless, it is a tool that poses grave dangers 

to our constitutional system of government. In its current manifestation, the Senate’s ideological use of the confirmation power threatens the separation of powers 

13

51See CHARLES A. BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE

UNITED STATES 324 (1935) (‘‘The Constitution was essentially an economic document based upon 

the concept that the fundamental private rights of property are anterior to government and morally beyond the reach of popular majorities’’). 52Quoted in Roger Pilon, The Purpose And Limits of Government 31(Cato Institute 1999). 53See generally Thomas Fleming, The New Dealer’s War: FDR And The War within World 

War II 59–62 (2001); Hadley Arkes, The Return of George Sutherland (1994); Timothy Sandefur, 

The Common Law Right to Earn A Living, 75 Independent Review 51 (Summer 2001); Bernard 

Seigan, Economic Liberties And The Constitution (1980). See further United States v. Carolene 

Products, 304 U.S. 144, 152 (1936); West Coast Hotel v. Parrish, 300 U.S. 379, 398 (1937); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30–31 (1937). 54Statement at Courts Subcommittee hearing, May 9, 2002 (visited May 26, 2002) <http://

schumer.senate.gov/SchumerWebsite/pressroom/press—releases/PR00978.html>. 55 John Johnson, Judge Harry Pregerson, Choosing between Law And His Conscience, LOS AN- GELES TIMES, May 3, 1992 at B5. 56 In 1992, Judge Pregerson ordered a stay to the execution of the serial killer Robert Alton 

Harris, the fourth such stay that was issued on the night of Harris’ scheduled execution. The 

result was an unprecedented decision from the Supreme Court of the United States, ordering 

that ‘‘no further stays of Robert Alton Harris’ execution shall be entered by the federal courts 

Continued

by undermining the responsibility for appointments given to the President, by demanding of judicial nominees a commitment to a role not appropriate to the courts, 

and, perhaps most importantly, by threatening the independence of the judiciary 

itself. 

The reason that some Senators are so intent on delving into the judicial philosophy of nominees is deeply connected to their view of the proper role of the judiciary 

in American government. Viewing the Constitution as a ‘‘living document,’’ modernday liberals see the Court as a place where the Constitution is stretched, shaped, 

cut, and rewritten in order to put in place so-called ‘‘progressive’’ policies that could 

never emerge from the legislative process. Of course, the Constitution is based on 

a profoundly different notion of law than is modern liberalism, and it is no wonder, 

therefore, that President Franklin D. Roosevelt, the godfather of the Welfare State 

that lies at the center of modern liberalism, found it necessary to resort to the highly questionable ‘‘Court-packing plan’’ of 1936 in order to enforce his ‘‘vision’’ of a new 

political order. The Constitution simply was not designed to accommodate such 

things as the massive redistributions of wealth or bureaucratic restrictions on individual liberty that Roosevelt was proposing—in fact, it was designed precisely to 

prevent such things.51 As Rexford Tugwell, one of the principal architects of the 

New Deal, admitted, ‘‘To the extent that [the New Deal policies] developed, they 

were tortured interpretations of a document intended to prevent them.’’ 52 So the 

Constitution was essentially re-written by interpretation, culminating in the great 

‘‘Switch in Time That Saved Nine,’’ in which a century and a half of precedent was 

reversed and the Constitution stretched and torn out of shape to accommodate the 

New Deal programs.53

Judicial ideology is therefore critically important to modern-day liberals because 

any honest reading of the Constitution reveals that it is incompatible with their 

scheme of government. 

Senator Schumer, for example, has been quite candid in acknowledging that his 

opposition to President Bush’s judicial nominees is based on the fact that they respect and will enforce the Constitution’s limitations on the power of Congress. ‘‘Elected officials,’’ Senator Schumer told the press on May 9, 2002,

should get the benefit of the doubt with respect to policy judgments and courts 

should not reach out to impose their will over that of elected legislatures. . . . Many of us on our side of the aisle are acutely concerned with the new limits 

that are now developing on our power to address the problems of those who 

elect us to serve—these decisions affect, in a fundamental way, our ability to 

address major national issues like discrimination against the disabled and the 

aged, protecting the environment, and combating gun violence.54

This is not to say that ideology should never play a role in the confirmation process. Some ideologically-based views render it impossible for a nominee who holds 

them to fulfill his oath of office. Consider, for instance, Judge Harry Pregerson, who, 

when he was nominated to the Court of Appeals for the Ninth Circuit by President 

Carter, was asked whether he would follow his conscience or the law, if the two 

came into conflict. ‘‘I would follow my conscience,’’ he replied.55 That statement, 

grounded in Pregerson’s own ideology, should easily have been grounds for disqualification, yet Pregerson was not only confirmed to the bench, but roundly praised for 

this statement, despite the fact that it threatens to undermine the very essence of 

constitutionalism and the rule of law.56

14

except upon order of this Court.’’ Vasquez v. Harris, 503 U.S. 1000 (1992). See further Charles 

Fried, Impudence, 1992 SUP. CT. REV. 155, 188–92. 57 Antonin Scalia, God’s Justice And Ours, FIRST THINGS, May 1, 2002 at 17. 58The oath of office is prescribed in U.S. CONST. art. VI § 3. 59Letter to Thomas Jefferson (June 27, 1798), in RAKOVE, supra note 3 at 801 (emphasis 

added). 60THE FEDERALIST NO. 78 at 466 (C. Rossiter ed. 1961). 61 Id.

Contrast this with Justice Antonin Scalia, who in a recent speech said that he 

was glad the Pope had not declared the Catholic Church’s opposition to the death 

penalty a matter of infallible Church doctrine, because if the Pope had done so, Justice Scalia would, as a practicing and committed Catholic, feel compelled to resign, 

unable to abide by his oath to enforce the law. In his view,

the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws 

and has been given no power to supplant them with rules of his own. . . . This 

dilemma, of course, need not be confronted by a proponent of the ‘‘living Constitution,’’ who believes that it means what it ought to mean. If the death penalty is (in his view) immoral, then it is (hey, presto!) automatically unconstitutional, and he can continue to sit while nullifying a sanction that has been imposed, with no suggestion of its unconstitutionality, since the beginning of the 

Republic. (You can see why the ‘‘living Constitution’’ has such attraction for us 

judges.) 57

Ideology understood in this light is of course relevant in selecting a judicial nominee. Broadly understood, such ‘‘ideology’’ would encompass a nominee’s honor and 

character, which are necessary to fulfill the oath of office.58 A nominee who for ideological reasons cannot ‘‘support and defend the Constitution of the United States’’—

say, an agent working for the Taliban—would be unfit for office because he would 

lack the qualifications necessary for the position. In fact, although we tend to take 

the concept of an oath lightly today, James Madison wrote that under the Constitution, ‘‘the concurrence of the Senate chosen by the State Legislatures, in appointing 

the Judges, and the oaths and official tenures of these, with the surveillance of public Opinion, [would be] relied on as guarantying their impartiality....’’ 59 This is 

very different than demanding of a nominee that he toe the line of leftist jurisprudence. 

Today, Senators inquire into a nominee’s ideology for precisely the opposite reason: to ensure that the nominee will not abide by the Constitution or his oath to 

support it—to ensure, rather, that he will stretch and bend the Constitution in the 

directions that the Senator prefers. 

On top of the danger that this presents to the fair resolution of controversies in 

Constitutional law, it presents a great danger to another vital principle of American 

government: separation of powers. In Federalist 78, Alexander Hamilton declared 

the judiciary the ‘‘least dangerous branch’’ of the new federal government. ‘‘[T]he 

general liberty of the people can never be endangered’’ by the judiciary, he wrote, 

‘‘so long as the judiciary remains truly distinct from both the legislature and the 

Executive. . . . [L]iberty can have nothing to fear from the judiciary alone, but 

would have every thing to fear from its union with either of the other departments.’’

‘‘[A]ll the effects of such a union must ensue from a dependence of the former on 

the latter, notwithstanding a nominal and apparent separation.’’ 60 The enforcement 

of political orthodoxy on the bench is creating precisely this dependence, strengthened even more by demands for judicial ‘‘deference’’ to Congressional acts that exceed the limited scope of the federal government’s Constitutional powers. 

‘‘The complete independence of the courts of justice is peculiarly essential in a 

limited Constitution,’’ wrote Hamilton. The courts alone could ‘‘declare all acts contrary to the manifest tenor of the Constitution void.’’ 61 But the current attempt to 

block judges who believe in limited government is not motivated by a desire to 

maintain inviolate the ‘‘exceptions to the legislative authority.’’ It is motivated by 

a desire to ensure that the judiciary will interpret the Constitution in a way most 

suited to extend that legislative authority as far as possible. 

What that essentially means is that the current attempt to use the Senate’s confirmation power to regulate the ideology of judges is part of an overall trend which 

is turning the judiciary into a second legislative branch. The fundamental differences between the legislative and the judicial branch is that in the former, parties lobby, contend, vote, and decide on procedures that may infringe on the private 

rights of individuals. The courts are supposed to act as a ‘‘countermajoritarian’’

15

62Letter from James Madison to Thomas Jefferson (Oct. 17, 1788) in RAKOVE, supra note 3 

at 418, 421. 63SENATE EXECUTIVE J. at 19 (Aug. 21, 1789) cited in Lee Renzin, NOTE: Advice, Consent, 

and Senate Inaction: Is Judicial Resolution Possible? 73 N.Y.U. L. REV. 1739, 1755 (Nov. 1999). 64The arrogation of the nomination power to individual Senators is also evident in new structures that have been devised for the selection of district court judges. Patterned after the commissions established by Gerald Parsky in California with the enthusiastic support of Senators 

Feinstein and Boxer, these ‘‘vetting’’ commissions essentially have veto power over candidates 

submitted for the President’s consideration. Because the committees are structured so that block 

voting by the Feinstein and Boxer appointees can prevent any candidate’s name from being forwarded to the White House, the commissions amount to much more than ‘‘advice’’ to the President. They represent a transfer of the nomination power itself to individual Senators, Senators 

who are not even members of the President’s own political party. Reportedly, the appointees of 

Senators Feinstein and Boxer have used this new-found power to question candidates about 

their religious views, in violation of the Constitution’s ban on religious tests, see U.S. Const. Art. 

VI, cl. 3, and about their positions on cases likely to come before the candidate as judge, in violation of the Canons of Judicial Ethics. See generally, John Fund, ‘‘Boxer Rebellion,’’ Wall Street 

Journal, June 5, 2002. 65See Statement of Sen. Leahy (May 23, 2002) (visited May 29, 2002) <http://judiciary.senate.gov/member—statement.cfm?id=268&wit—id=50>. 66 Judge Parker was nominated on May 9, 2001 and confirmed on October 11, 2001. See further David G. Savage, Bush’s Judicial Nominees Go 28 for 80 in The Senate, LOS ANGELES

TIMES, Dec. 31, 2001 at A12. Judge Gregory was nominated on May 9, 2001 and confirmed on 

Continued

mechanism to ensure that the legislature does not engage in ‘‘the invasion of private 

rights . . . from acts in which the Government is the mere instrument of the major 

number of the constituents.’’ 62 The very existence of the judiciary is premised on 

the fact that the majority is not always right. Allowing the Senate—elected by the 

majority—too great a hand in regulating the federal bench risks eroding the judiciary’s power to perform this most crucial task. 

B. The Dangerous Techniques of Today’s Judicial Confirmation Process. 

One of the most disturbing manifestations of the new process is the growing tendency of the Senate to refuse even to hold hearings for nominees. This practice suggests not that the nominees are too far outside the ideological mainstream to be confirmed, but rather that the Senators fear to vote down the nominees on ideological 

grounds, precisely because they are not outside the ideological mainstream. 

Even those who argue that the Senate should take a large role in molding the 

judiciary must acknowledge that blocking nominations by refusing to hold hearings 

is an inappropriate tactic. The Senate has the power to advise and consent to a 

President’s nominees. The refusal to hold hearings at all is not advise or consent; 

it is political blackmail which perpetuates the critical number of vacancies on the 

federal bench. In fact, as one author has noted, senatorial inaction is contrary to 

a resolution passed by the very first Senate in 1789, which declared that ‘‘when 

nominations shall be made in writing by the President of the United States to the 

Senate, a future day shall be assigned, unless the Senate unanimously direct otherwise, for taking them into consideration . . . and the Senators shall signify their 

assent or dissent by answering, viva voce, ay or no.’’ 63

Moreover, the current strategy of delay that appears to be the mainstay of the 

present Senate Judiciary Committee threatens to intrude upon the Executive’s powers, in violation of core separation of powers principles. Improper attempts to impose ideological litmus tests by voting down the President’s nominees could be countered by re-nomination of like-minded individuals, but the outright refusal even to 

hold hearings, or to refer nominees to the floor of the Senate for a vote, deprives 

the President of even this remedial power, eventually forcing the President to accede to demands to nominate individuals more to the liking of individual Senators. 

The delay tactics appear designed, then, to transfer the nomination power from the 

President to the Senate, a result that the founders greatly feared.64

It is very important to note an interesting claim made by some Senate Democrats 

in defense of their refusal to hold hearings on President Bush’s nominees. Many of 

them—for instance, Senator Leahy—argue that they have actually confirmed quite 

a lot of judges, and that Republicans are simply lying when they complain about 

the slow pace of Senator Leahy’s Judiciary Committee.65 But, in fact, most of the 

judges that have been confirmed are district court judges, a very important component of the judicial system, to be sure, but not the final word on the law, the way 

Circuit Judges are in the vast majority of cases. Of the eleven circuit court nominees 

President Bush made on May 9, 2001—seventeen months ago and counting as of 

yesterday—only six have received hearings. Two of these, Judges Barrington Parker 

Jr. and Roger Gregory, were confirmed relatively quickly 66 because they were ClinVerDate Jan 17 2002 15:35 Nov 21, 2002 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 G:\WORK\CONST\101002\82264.000 HJUD1 PsN: 82264
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July 20, 2001. See further Jonathan Ringel, Senate Confirms Three Bush Judicial Nominees, THE LEGAL INTELLIGENCER, July 24, 2001 at 4. 67 5 Cong. Deb. 86, 88 (Feb. 2, 1829). 68 Id. at 92. 69 Id. 70 Id. at 86. 71 Brannon P. Denning, The ‘‘Blue Slip’’: Enforcing The Norms of the Judicial Confirmation 

Process, 10 WM. & MART BILL OF RTS. J. 75 (Dec. 2001). 72 According to its defenders, the blue slip procedure enforces the Constitutional scheme of advice and consent by serving as a ‘‘formal sanction for violation of the Senate norm of the courton nominees, whom President Bush re-nominated in a show of bipartisanship. The 

others, Judge Charles Pickering, Justice Priscilla Owen, Professor Michael McConnell, and former deputy Solicitor General Miguel Estrada, waited over a year for 

their hearings, and then were given hearings only after far-left interest groups 

thought they had dug up enough dirt to scuttle the nominations. The Senate Judiciary Committee refused, by straight party-line vote, to report Judge Pickering and 

Justice Owen out of committee, and it appears poised to do the same with Michael 

McConnell and Migual Estrada, both of whom have received unanimous well-qualified ratings from the American Bar Association. The remaining five have not even 

received a hearing, 519 days and counting since their nominations were first announced: John Roberts, one of the leading Supreme Court practitioners of the day, 

nominated to the D.C. Circuit for the second time, his nomination by the elder Bush 

having likewise been stalled until it died with the expiration of the Congressional 

session following President Bush’s defeat to Bill Clinton; Terrence Boyle, nominated 

to the Fourth Circuit for the second time, his nomination by the elder Bush also 

having been stalled until it died after the 1992 election; Dennis Shedd, also nominated to the Fourth Circuit; and Deborah Cook and Jeffrey Sutton, both nominated 

to the Sixth Circuit. 

Even taking Democrats at their word that their refusal to confirm President 

Bush’s nominees is an exercise of legitimate Congressional power to protect us from 

diabolical judges, one cannot justify the refusal to hold hearings or have confirmation votes by the full Senate. If these judges are so dangerous, Congress should hold 

the hearings and vote them down. But the fact is that these nominees are in general 

not just of unobjectionable character but of impeccable character, with outstanding 

legal minds. Democrats refuse to hold hearings precisely because, if they did so, it 

would become clear that the Democrats have no legitimate objections to them and 

that, in fact, they enjoy majority support in the Senate, including support by some 

Democrats. The delays are meant as a starvation campaign—or, worse, to bide time 

for radical interest groups to discover (or invent) grounds for objecting to the nominees. This tactic, too, has been previously addressed by the Senate. After Andrew Jackson defeated John Quincy Adams for President in 1828, Adams had several months 

as a lame duck President in which to nominate Judges to the federal bench. Because 

he no longer had the confidence of the people, several Senators wanted to postpone 

consideration of John J. Crittendon, whom President Adams had nominated as an 

Associate Justice of the Supreme Court. Although the Senate ultimately rejected the 

Crittendon nomination, the arguments made against the delay were profoundly important and ultimately carried the day throughout most of this nation’s history. Senator Holmes argued, for example, that although the Senate had a right to deliberate 

and look into the character and qualifications of a candidate, it had ‘‘no constitutional power to resist its execution.’’ Delays beyond what were necessary to deliberate about the nominee’s qualifications were, he asserted, ‘‘an abuse of a discretion’’ given by the Constitution.67 Senator Johnson echoed the sentiment, stating that ‘‘The duty of the Senate is confined to an inquiry into the character and qualifications of the person, and to a decisive action upon the nomination, in a reasonable 

time.’’ 68 Johnson made the following dire prediction: ‘‘The moment you depart from 

the constitution, and begin an attack upon the other departments of the Government, you commence a conflict of authority where there is no arbiter, which will end 

in perpetual collision, or in the destruction of the Government.’’ 69 That, and the 

similar prediction by Senator Chambers—‘‘Once let discretion be adopted as the rule 

of conduct for those in power, and no man can prescribe limits to the mischief which 

must ensue’’ 70—should give us all pause at the actions, or rather inaction, currently 

being undertaken in the Senate. 

Another dangerous change that has occurred in the confirmation procedures involves an expansion of the so-called ‘‘blue slip’’ policy—the practice whereby home 

state Senators are essentially given a veto power of the President’s nominees to positions in that state.71 Although the policy has always been constitutionally suspect 72—the advice and consent power is given to the Senate as a body, not to indiVerDate Jan 17 2002 15:35 Nov 21, 2002 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 G:\WORK\CONST\101002\82264.000 HJUD1 PsN: 82264
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tesy from presidents, who are expected to seek advice from Senators prior to making judicial 

appointments.’’ Id. at 97. But the President is not expected to seek advice from individual Senators, or at least not from the two Senators from a nominee’s home state, whose views will be 

based primarily on the nominee’s party loyalty and the Senator’s political ambitions. The Constitution expects the President to seek advice from the Senate. In fact, as the history of the Advice and Consent Clause shows, the founders would have preferred a system which required the 

President to seek the advice from Senators of states other than the nominee’s home state, because they would be less likely to be influenced by that nominee’s home-grown political connections. In any case, the Constitution does not confer the confirmation power on the home-state 

Senators; it vests it in the Senate, and only to prevent unqualified or politically driven nominations. 73See note 31, supra. 74See, e.g., Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 STAN. L. REV. 181, 233 

(Jan. 1997) (proposing a lawsuit to force the Senate to hold hearings on nominees); Renzin, 

supra note 63 (arguing that blue slip procedure and Senatorial inaction are unconstitutional). 

Of course, in reality, the Congress did not refuse to confirm President Clinton’s judicial nomi- nees—it confirmed 377, almost as many as were confirmed during the Reagan Administration 

(382), despite the fact that for six of his eight years in office, President Clinton was faced with 

a Senate majority of the opposite political party, while President Reagan had a Senate majority 

of his own party for six of his eight years in office. 75See Thomas G. West, The Constitutionalism of the Founders Versus Modern Liberalism, 6 

NEXUS J. OP. 75 (2001). 76See Michael J. Gerhardt, ‘‘Toward a Comprehensive Understanding of the Federal Appointments Process,’’ 21 Harv. J. L. & PUB. POL’Y 467, 516 (Spring 1998) (citing, e.g., Editorial, Judicial Gridlock, Wash. Post, July 10, 1996, at A16). 

vidual Senators—as historically exercised it at least had some grounding in the 

original purpose that underlay the advice and consent clause. Home state Senators 

were extended this courtesy because it was assumed that they would have firsthand knowledge of nominees from their home state that would allow them to more 

adequately judge their character and fitness for office—just the kind of role envisioned by the framers of the clause.73 More importantly, the blue slip practice, again 

as historically exercised, had natural limits protecting against its abuse. A Senator 

who went to the blue slip well too often could easily find that the President simply 

nominated a judge from another State in the Circuit. 

Neither the original purpose nor the inherent limit is found in the current, expanded blue slip policy. Now, Senators essentially have a veto power over any nominee from the entire circuit in which their state is located, belying any claim to special knowledge of the nominee’s character derived from home-state familiarity, and 

removing the one check on the policy’s potential for abuse. Not surprisingly, without 

the check that was built in to the original policy, the blue slip has become a much 

more favored tool for advancing a Senator’s own views, further undermining the 

President’s constitutional role in appointments. 

Ironically, senatorial inaction toward judicial nominations came under increasing 

fire during the Clinton Administration, when Democrats complained that the Republican-controlled Senate was refusing to confirm President Clinton’s nominees.74

Now that the tables have turned, however, Democrats are defending their inaction 

not only as a political game of turnabout-is-fair-play, but as a solemn duty to defend 

the Constitutional structure-the same structure, of course, that they have been vigorously undermining for at least seventy years.75 Of course, the turn-about, tit-fortat argument depends entirely on the starting point, and one need only query John 

Roberts and Terrence Boyle, both nominated originally in the first Bush administration, to rebut any claim that the ‘‘inaction’’ that has been attributed to the Republicans during the second term of the Clinton administration was the first shot in 

this confirmation war. In any event, one of the three main examples of Republican 

‘‘inaction,’’ Roger Gregory, was re-nominated to the Fourth Circuit by President 

Bush, promptly confirmed, and is now sitting on the bench. Confirmation of another, 

Merrick Garland, was delayed for a year by Senator Charles Grassley in response 

to the Democrat’s stall of John Roberts,76 but he was ultimately confirmed and now 

sits on the D.C. Circuit Court of Appeals. The final example, Helen White of Michigan, languished for several years, but Judge White was the sister-in-law of thenSenator Carl Levin. The blue-slip opposition by Michigan’s other Senator to the blatant display of nepotism was precisely the kind of check on the appointment power 

envisioned by the framers; that opposition hardly serves as precedent for the broadbased delay and opposition to the highly qualified nominees currently before the 

Senate. 

But inaction and the blue slip process are not the only tactics being indulged toward President Bush’s nominees. Recently, Judge D. Brooks Smith received a remarkable letter from Senator Charles Schumer of New York, asking Smith

18

77Griswold v. Connecticut, 381 U.S. 479 (1965). 78Quoted in Byron York, Schumer’s Attack, NATIONAL REVIEW ONLINE, May 14, 2002 (visited 

May 23, 2002) <http://www.nationalreview.com/york/york051402.asp>. 79 NOW Activists Protest Nomination of D. Brooks Smith Outside Federal Court Building, May 

20, 2002, (visited May 23, 2002) <http://www.now.org/press/05–02/05–20.html>. 80See Mazurek v. Armstrong, 520 U.S. 968, 974 (1997) (‘‘The Court of Appeals’ decision is also 

contradicted by our repeated statements in past cases—none of which was so much as cited by 

the Court of Appeals, despite the District Court’s discussion of two of them—that the performance of abortions may be restricted to physicians’’). 

to imagine it is 1965 and you are a Supreme Court justice. The Griswold opinion 77 has not yet been written. Chief Justice Warren turns to you in conference 

and asks you for your opinion on whether there is a right to privacy in the Constitution and why. He further asks you to articulate how that right, if it exists, 

should be applied in Griswold. Please provide your answers to those inquiries. 

Schumer was, in his own words, ‘‘interested in how you personally read and interpret the Constitution.’’ 78

Senator Schumer’s questions quite obviously have nothing to do with preventing 

nepotism, or the appointment of incompetent political cronies, by the President. Instead, Senator Schumer’s questions serve merely to test Judge Smith’s commitment 

to the standard of ‘‘evolving constitutionalism’’ advocated by Schumer and some of 

his colleagues. Senator Schumer’s question is designed precisely to elicit the nomi- nee’s political ideology in an attempt to enforce political orthodoxy on the bench. Yet 

Schumer is not ‘‘responsible’’ for the nomination in the sense that the founders envisioned. Citizens throughout most of the country who might be appalled by Senator 

Schumer’s questions cannot vote Senator Schumer out of office. While President 

Bush, in nominating Judge Brooks, must be, in Madison’s words, ‘‘considered as a 

national officer, acting for and equally sympathizing with every part of the U. 

States,’’ Senator Schumer is only required to serve his liberal constituency in New 

York, comprised of groups such as the National Organization for Women, which targeted Judge Smith’s nomination, claiming that he is ‘‘unfit’’ to be a Circuit Judge 

because he did not resign fast enough from a men’s hunting club, and because, in 

its words, he has ‘‘ultraconservative buddies.’’ 79

A similar dynamic was at play in the Senate Judiciary Committee’s rejection of 

Texas Supreme Court Justice Priscilla Owen to a seat on the U.S. Court of Appeals 

for the Fifth Circuit. The main source of opposition to Justice Owen was her vote 

to uphold a Texas statute requiring that minor girls notify their parents before obtaining an abortion. The Texas statute contained a judicial bypass mechanism, as 

required by existing Supreme Court precedent. In fact, there was little doubt that 

the statute was constitutional under prevailing precedent. The opposition to Justice 

Owen, then, was based on her refusal to ignore existing, binding Supreme Court 

precedent in favor of the expanded, unfettered right to abortion being propounded 

by the litigants in the case. What the opponents of Justice Owen wanted instead, 

apparently, was a judge who would ignore the law and existing Supreme Court 

precedent to advance her particular causes from the bench-like the Ninth Circuit 

judges whose recent attempt to strike down a Montana statute that, in full accord 

with prevailing Supreme Court precedent, required abortions to be performed by a 

physician, met with a rare, summary reversal by the Supreme Court without oral 

argument.80

In short, the opposition to Justice Owen, like Senator Schumer’s opposition to 

Judge Smith, was ultimately grounded in the fear that they would honor their oaths 

and uphold the law rather than bend the law to their own will (or, more precisely, 

to the will of those who would vote to confirm them). That such is an abuse of the 

advice and consent process should be obvious, as should the intrusion upon both 

other branches of government—the President’s power to nominate and the very 

independence of the judiciary in upholding the rule of law. 

Of course, Congress has some constitutional power to create schemes for the advancement of such causes or other pet projects, such as the redistribution of wealth 

or restriction on private liberties and property rights—that is to say, it can propose 

constitutional amendments that would authorize such action. It could propose to repeal the constitutional protections for property rights found in the Fifth Amendment 

and elsewhere, by writing an amendment and submitting it to the states. But Congress knows that such an amendment would never succeed, so instead some members of Congress pursue this new method of enforcing their radical agenda from the 

bench. 

This is essentially the difference between raw, abusive power and constitutional 

norms. Having failed to accomplish their policy goals in the constitutional fashion, 

some members of the Senate are attempting to accomplish them by submitting judiVerDate Jan 17 2002 15:35 Nov 21, 2002 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 G:\WORK\CONST\101002\82264.000 HJUD1 PsN: 82264
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81Statement to Administrative Oversight And The Courts Subcommittee (June 26, 2001) 2001 

WL 21756493. 82Samuel Spencer, Speech at the North Carolina Ratification Convention, July 28, 1788, reprinted in 2 BAILYN, supra note 30 at 879.

cial nominees to a vetting by radical interest groups who will decide whether the 

nominees can be relied upon to decide the ‘‘right’’ way on the cases that come before 

them. There is an interesting irony to this, however: in a sense, the Constitution 

already requires judges to decide the ‘‘right way’’—that is, it requires judges to 

abide by an oath to ‘‘support and defend the Constitution.’’ But it also requires Senators to do the same thing. Some Senators have arguably abandoned that duty by 

supporting and defending a governmental scheme totally alien to that contemplated 

by the framers. Now those Senators are seeking to weed out any judges who might 

force them to abide by that duty. 

III. CONCLUSION

In June of 2001, President Clinton’s White House Counsel, Lloyd Cutler, told the 

Senate Judiciary Committee that ‘‘it would be a tragic development if ideology became an increasingly important consideration in the future. To make ideology an 

issue in the confirmation process is to suggest that the legal process is and should 

be a political one. That is not only wrong as a matter of political science; it also 

serves to weaken public confidence in the courts.’’ 81

Today the Senate is doing precisely what one delegate to the North Carolina ratification convention warned against: it is taking over the nomination power which 

the Constitution vested in the President alone. ‘‘[T]he President may nominate, but 

they have a negative upon his nomination, till he has exhausted the number of 

those he wishes to be appointed: He will be obliged finally to acquiesce in the appointment of those which the Senate shall nominate, or else no appointment will 

take place.’’ 82 The dangers posed by such a system are as real today as they were 

to the founding generation. It is time to rid ourselves of all ideological litmus tests 

save one: ‘‘Mr. or Ms. Nominee, are you prepared to honor your oath to support the 

Constitution as written and not as you would like it to be, if we confirm you to this 

important office?’’ Any nominee who answers that question in the negative deserves 

to be rejected. Unfortunately, the Senate is today refusing a hearing or denying a 

vote to several nominees precisely because the current leadership knows that those 

nominees would honestly answer that question in the affirmative. 

Mr. CHABOT. Mr. Gaziano. 

STATEMENT OF TODD GAZIANO, SENIOR FELLOW IN LEGAL 

STUDIES AND DIRECTOR, CENTER FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE FOUNDATION 

Mr. GAZIANO. Good morning, Mr. Chairman and Members of the 

Subcommittee. I also thank you for this opportunity to testify. 

I concur in Professor Eastman’s recommendation in some of the 

ways that the Framers clearly allow. This is set forth in my testimony as well. But I want to focus just briefly on the obvious cause 

of the judicial vacancy crisis, which is the Senate’s intentional refusal to act on many of the President’s nominees, and then talk 

about the effect on the courts. 

There are a lot of statistics, of course, thrown around in this debate, but let me just mention two that make the delay unavoidable. 

At the end of the last Congress, there were 67 judicial vacancies, 

and this is a time at the end of a Presidential term when normally 

vacancies increase. At the end of this Congress today, there are 77, 

an increase of 15 percent, during a period when traditionally the 

new President’s judicial nominees are given great deference. And 

I should add President Bush set records in the number and timing 

of his nominations before the Senate. 

The second fact is the average wait for court of appeals nominees, because even the statistic I alluded to before gives the Senate 

more credit than it deserves if you look at the court of appeals 

20

nominees alone. My testimony compares the average wait of a 

court of appeals nominee for final Senate action for different Presidents, and it shows a very dramatic difference. Reagan, on the first 

set of nominees, first 11, was 35 days. It is 400 days now. But even 

that overestimates the speed of the Senate Judiciary Committee, 

because the first two nominees that they confirmed were President—appointed originally by President Clinton and were renominated as a goodwill gesture. If you eliminate those nominees, the 

average wait for the first 11 court of appeals nominees other than 

those two is 500 days. 

Well, what is the proper standard? In 1998, Senator Leahy proposed one. He proposed a law that would have required the Senate 

to act on all judicial nominees then pending for 60 days or longer 

before the Senate recessed for 10 days or longer. Now, according to 

his own standard that he tried to get enacted into law, on August 

2001 recess he had 10 court of appeals nominees that were pending 

as that recess approached. He could have at least gotten them out 

of his Committee that he is solely responsible for, and his fellow 

Members of the Committee. After he confirmed the two Clinton 

judges, he acted on none of them. A year later—365 days later— 2002 August recess, of the 10 that were pending earlier, he had 

had hearings on 3, Committee votes on 2, none of which were reported to the full Senate, and the third that he had the hearing on, 

and we all know the shameful denial of the Committee vote that 

occurred earlier this week. 

In my remaining time I want to focus on the impact of the courts 

because my written testimony talks about, I think, the harm to the 

rule of law that the Committee is doing when it does conduct a 

hearing. But the fact is when the vacancy rates increase substantially, as the Chairman explained in his opening statement, the Judicial Conference of the United States has to declare judicial emergencies. This allows certain emergency rules to come into play. 

These aren’t attractive rules, but the courts really have no choice. 

For example, it allows a circuit court to sit with only one active 

judge on a panel and up to two retired judges or visiting judges. 

It was one such panel in the ninth circuit that decided the infamous Pledge of Allegiance case. It is this type of procedure that 

skews the jurisprudence of the appellate courts. There are other 

emergency rules, like two judges can rule on emergency motions or 

decide summary dispositions. 

The Federal judges that have written on this don’t like this, and 

the academics have criticized it, but what is the alternative? It is 

either to deny justice by delaying these decisions further—one of 

the studies I cited in my written testimony describes the likely result of even in circuits where there isn’t a judicial emergency rule, 

they decide more cases on their summary document. That is without oral argument, generally without an opinion. In that study 

Judge Jones, who I had the great privilege to work for, estimated 

that she spent less than 1 hour on each of the appeals for up to 

about half of her cases. 

But what are the courts of appeals judges to do? But that is the 

best-case scenario for the situation in the courts. The worst-case 

scenario is there appears to be some great concern about judicial 

manipulation. Besides the matter that the Chairman alluded to, 

21

there have been questions raised about the chief judges’ ability to 

assign other cases in other circuits, to select the senior judges or 

retired judges and other visiting judges who might sit on particular 

matters. 

But the sixth circuit case really is the most dramatic case because this was a nationally watched case challenging the racially 

discriminatory policies of the University of Michigan. Every other 

circuit in the Nation had struck down such policies that had decided them, and the facts set forth in Judge Boggs’ dissent are 

quite remarkable. After manipulating the original panel that was 

hearing motions in the case, the chief judge also refused to circulate—didn’t—whether he refused to do so or not is left for others 

to judge—he didn’t circulate the petition for hearing by the entire 

court until after two judges appointed by Republicans had retired. 

Then the court accepted the case en banc. Then the court heard argument. Months later the court rendered a very split decision, 5– 4, in conflict with every other circuit, during which time the U.S. 

Senate refused to have any hearings in the circuit, as the Chairman has said, with the highest vacancy rate. 

Last week, Mr. Chairman, the students challenging the discriminatory policy brought an extraordinary writ in the U.S. Supreme 

Court asking the Supreme Court to take the remaining case away 

from the sixth circuit and decide both cases. I hope the Supreme 

Court does so because that is the only thing that is going to lift 

the cloud of that litigation. But it was the U.S. Senate that made 

that cloud possible. Either they intended it, or they just enabled it 

to happen through their intentional inaction. Neither possibility is 

very attractive. Thank you. 

Mr. CHABOT. Thank you. 

[The prepared statement of Mr. Gaziano follows:]

PREPARED STATEMENT OF TODD F. GAZIANO

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, a nonpartisan 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. 

22

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 

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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 

24

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 

25

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.

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 


Gaziano.eps
26

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 difVerDate Jan 17 2002 15:35 Nov 21, 2002 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6621 G:\WORK\CONST\101002\82264.000 HJUD1 PsN: 82264
27

ference 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 

28

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 

29

formed with two active members of the court and one senior or visiting judge—as- suming 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’’

30

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 

31

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.

Mr. CHABOT. Mr. Neas. 

STATEMENT OF RALPH NEAS, PRESIDENT, PEOPLE FOR THE 

AMERICAN WAY AND PEOPLE FOR THE AMERICAN WAY 

FOUNDATION 

Mr. NEAS. Good morning, Mr. Chairman and Members of the 

Committee. On behalf of the 600,000 members and supporters of 

People for the American Way, I thank you for the opportunity to 

testify today on the subject of vacancies in the Federal courts. 

It is great to be back in this room. When I was with the Leadership Conference on Civil Rights, I was part of an effort led by the 

bipartisan congressional majorities to strengthen all the major civil 

rights laws from 1981 to 1993, so I have a lot of great memories 

from here. 

Mr. Chairman, I believe the future of the Federal judiciary is the 

most important domestic issue facing the Congress, the Presidency 

and the courts and the Nation. Indeed, judges confirmed today will 

be interpreting the Constitution and the laws of the land for decades to come, and what they decide will have a profound impact 

on the daily lives of all Americans, their children and grandchildren. 

With so much at stake, we urgently need a national debate. 

Thank you for contributing to it. It is heartening to us, People for 

the American Way, that the Senate Judiciary Committee is taking 

its constitutional responsibility seriously in conducting a meaningful review of a number of President Bush’s nominees. At the same 

time, the Senate has made significant progress in addressing the 

extraordinary number of vacancies inherited from the previous Republican-controlled Senate. 

The American people would be appalled if they knew that the result of the unprecedented obstructionism of right-wing Senators, 35 

percent of President Clinton’s circuit nominees were blocked from 

1995 to 2001. Thirty-five percent. Forty-five percent of them failed 

to receive a vote in the Congress during which they were nominated. Many did not even get a hearing. As a result of the rightwing blockade, judicial vacancies skyrocketed from 65 in 1995 to 

111 in 2001. 

There is no question ultraconservative groups and politicians 

hope that a Republican President would take advantage of all those 

vacancies their Senate allies perpetuated by filling them with 

right-wing ideologues. Currently, Republican-nominated judges 

hold a majority on 7 of the 13 circuit courts of appeals, three are 

32

majority Democratic appointments, and three are divided. If all of 

President Bush’s current nominees are approved, such judges will 

make up a majority on 10 circuit courts. By the end of 2004, Republican-appointed judges could make up a majority in every one 

of the 13 circuit courts of appeals. I am not sure that has ever happened in the history of the United States. With these judges, rightwing ideologues, the future of many of our civil rights and constitutional freedoms would be in serious jeopardy. 

It would be understandable for Senators Leahy and Daschle to 

treat judicial nominees the way nominees were treated from 1995 

to 2001. Instead, they have moved promptly and responsibly to fill 

judicial vacancies since taking control of the Senate. It is terribly 

unfair and hypocritical for the very same people who helped cause 

the delay, and who told us that vacancies were not a problem just 

a few years ago to now charge Senators Daschle and Leahy with 

improper delay and then use these charges to try to stampede 

nominations through the Senate. 

The charges are also totally inaccurate. In the first hearing during which Democrats controlled the Senate beginning in July 2001, 

the Senate confirmed 59 nominations to the Federal judiciary. 

These 59 nominations and confirmations are nearly four times the 

number confirmed during the entire first year of the first Bush 

nomination and more than twice the number confirmed during the 

first year of the Clinton administration. 

This pace is significantly ahead of what occurred when Republican Senators deliberately stalled the process from 1995 to 2000. 

For example, more judges were confirmed by the Senate in the first 

year of Democratic control than were confirmed in all of 1995, 

1996, 1997, 1999 and 2000. As of yesterday, 80 nominees have been 

confirmed, and 17 more have been approved by the Judiciary Committee. During the Reagan, Bush and Clinton Presidencies, four 

nominees on the average were confirmed each month. By contrast, 

of the first 15 months of Senator Leahy’s chairmanship, the average has been five to six confirmations per month. At this rate there 

will be more judges confirmed during these 4 years than any comparable 4-year period in our history. 

Perhaps we should consider slowing down a bit and reassessing 

things. The current pace of appellate court nominations exceeds the 

confirmation rate of the Senate when it was under Republican control, contradicting right-wing claims. The Senate has thus far confirmed 14 appellate court nominations, 11 of which were confirmed 

during the first year of Democratic control. In comparison, Republicans averaged less than eight confirmations per year during 1995 

to 2001. Because of the delay in refusing to vote in President Clinton’s nominations during that period, the total number of vacancies 

on the courts of appeals more than doubled from 1995 to 2001, 

growing from 16 to 33. That is a remarkable statistic, 16 to 33. 

In the last year, despite new vacancies, the total number of appellate court vacancies has decreased to 27. In fact, if Republicans 

had moved at the same pace that the Democratic Senate has 

moved since July of 2001, there would now only be six vacancies 

on the courts of appeal. 

Mr. Chairman, no Presidential nominee should be guaranteed 

confirmation to a lifetime seat on the Federal bench. 

33

Mr. Chairman, I am going to insert, if I may, for the record some 

of the standards and history and some of the history that the others discussed and just conclude. 

Mr. CHABOT. Without objection, those will be accepted. 

Mr. NEAS. The current unprecedented situation calls for an unprecedented bipartisan solution. The President should reject the 

demands of the far right and submit more moderate nominees who 

are truly qualified for the Federal bench. This should include genuine consultation with Senators of both parties both before and 

after nominations are made. Consensus and compromise should be 

the goals. This is the way more progress can be responsibly made 

to further reduce the number of vacancies on the courts. 

The debate over the Federal judiciary is part of an epic battle 

over the role of the Federal Government. The two-prong strategy 

of right-wing Republicans and, quite frankly, the Bush administration is simple, but breathtakingly radical. 

First, enacting affirmative tax cuts will eliminate $6 trillion in 

revenue over the next 20 years. That will, in effect, starve the Federal Government so it will be unable to fund many vital Government functions performed since the New Deal. The second prong is 

to pack the Federal judiciary with right-wing ideologues whose judicial philosophy would turn back the clock in civil rights, environmental protections, religious liberty, reproductive rights and privacy, and so much more. Take away the money. And then take 

away legal rights that have been part of our constitutional framework for 65 years. We do indeed need a national debate before the 

American people wake up one morning and discover that fundamental rights and liberties have vanished overnight. 

Thank you, Mr. Chairman, for the opportunity to testify. 

Mr. CHABOT. Thank you, Mr. Neas. 

[The prepared statement of Mr. Neas follows:]

PREPARED STATEMENT OF RALPH G. NEAS

Good morning, Mr. Chairman and members of the Committee. On behalf of the 

600,000 members and supporters of People For the American Way, I thank you for 

the opportunity to testify today on the subject of vacancies and the federal courts. 

The federal judiciary should be a topic of great interest and debate not only among 

Senators—who play a crucial constitutional role in reviewing nominees under consideration for lifetime appointments to federal judgeships—but also among members 

of the House and the American people. We need a national debate. 

It is impossible to overstate the importance of the federal judiciary to our nation’s 

future. Judges confirmed today will be setting precedents and interpreting the laws 

of the land for decades to come. The Senate Judiciary Committee has conducted robust, meaningful review and debates on a number of President Bush’s nominees. 

That is a vitally important task. In addition, Senate Judiciary Committee Chairman 

Patrick Leahy and Senate Majority Leader Tom Daschle have made significant 

progress in reducing the large and growing backlog of vacancies they inherited from 

the previous Republican-controlled Senate. 

The Supreme Court and other federal courts exercise enormous power in deciding 

cases on such issues as civil rights, the right to privacy, reproductive freedom, women’s rights, religious liberty, consumer and worker protection, and the environment. 

Because most cases that raise fundamental constitutional questions are now decided 

by slim majorities, more than 100 Supreme Court precedents could be overturned 

with just one or two more appointments who share the judicial philosophy of Justices Antonin Scalia and Clarence Thomas. It has now been more than eight years 

since the most recent Supreme Court appointment, the longest interval since the administration of James Monroe 179 years ago. 

The vast majority of federal cases never make it to the Supreme Court, but are 

decided by lower federal courts. These lower federal courts are extremely important, 

34

and every year decide thousands of cases that affect our lives. In 2001, for example, 

the federal appellate courts decided more than 28,000 cases, many of which were 

important rulings on privacy, the environment, and human and civil rights. This is 

in sharp contrast to the United States Supreme Court, which has reviewed fewer 

than 100 cases in recent terms. In effect, many appeals court rulings stand as the 

final word governing the law in their regions. 

As a result of right-wing Senators’ unprecedented obstructionism, 35 percent of 

President Clinton’s appellate court nominees were blocked from 1995–2000; 45 percent failed to receive a vote in the Congress during which they were nominated. 

Many did not even get a hearing. Right-wing groups hope the White House will take 

advantage of the vacancies their Senate allies perpetuated by filling them with 

right-wing ideologues. Republican-nominated judges currently hold a majority on 

seven of the 13 circuit courts of appeal; three have a majority of Democratic nominees and three are divided. If all President Bush’s current nominees are approved, 

such judges will make up a majority on 10 circuit courts. And by the end of 2004, 

Republican-appointed judges could make up a majority on every one of the 13 circuit 

courts of appeals. 

The result is that we are in an unprecedented situation in which the future of 

many of our civil rights and constitutional freedoms is literally at risk. 

In our system of checks and balances, the Senate has a co-equal role with the 

President in appointing federal judges, since it must provide its ‘‘advice and consent’’ before any nominee becomes a judge. It is imperative that the Senate carries 

out this constitutional role in a careful, thorough and diligent manner. Judicial 

nominees—who are confirmed for lifetime appointments—must be carefully scrutinized.

• No nominee is presumptively entitled to confirmation to a lifetime appointment 

to any federal court. Particularly for the courts of appeals and the Supreme 

Court, a nominee bears the burden of demonstrating that he or she meets the 

appropriate qualifications, which should include a demonstrated commitment 

to civil rights and individual liberties, and a clear respect for Congress’ proper 

constitutional role in protecting constitutional and civil rights and the health 

and safety of all Americans. More than 200 law professors have written to 

the Senate, setting forth these qualifications.

• In carrying out its role, the Senate must ensure that judicial nominees are subject to the highest standard of scrutiny. The decisions of judges last long after 

they and the President who appointed them have retired. The American people must be assured that judges who are given the solemn constitutional responsibility of protecting their rights and upholding the Constitution are unequivocally committed to justice and equality for all.

• Each nominee’s record must be examined carefully, including unpublished 

opinions and other information that may not be readily available. By its very 

nature, this sometimes is a time consuming process but one that is essential 

to the Senate’s obligation to evaluate the full record of a nominee. The mere 

absence of disqualifying evidence in a nominee’s record should not constitute 

sufficient grounds for confirmation.

• The Senate should reject far right court-packing efforts, and should withhold 

its consent from right-wing nominees who do not demonstrate a commitment 

to civil rights and liberties. Senators should take a clear and unequivocal 

stand, including discussing openly the potential impact of right-wing domination of the federal courts and the importance of opposing nominees whose lifetime appointments would threaten America’s rights and liberties. More moderate, mainstream nominees who reflect genuine bipartisan consultation 

should receive priority in processing.

Since taking control of the U.S. Senate and the Senate Judiciary Committee in 

July 2001, Senators Daschle and Leahy have moved promptly and responsibly to fill 

judicial vacancies. It is wrong for the very same people who helped cause the delay 

and who told us that vacancies were not a problem a few years ago to now charge 

Daschle and Leahy with improper delay and then use these charges to try to stampede nominations through the Senate. 

In the first year during which Democrats controlled the Senate, beginning in July 

2001, the Senate confirmed 59 nominations to the federal judiciary. These 59 confirmations are nearly four times the number confirmed during the entire first year 

of the first Bush administration (1989), and more than twice the number confirmed 

during the first year of the Clinton administration (1993). This pace is significantly 

ahead of what occurred when Republican Senators deliberately delayed the process 

from 1995 to 2000. For example, more Republican-nominated judges were confirmed 

35

in the first year of Democratic control than were confirmed in all of 1995, 1996, 

1997, 1999, or 2000. 

The total number of vacancies, which climbed to 110 during Republican control, 

will be down to 60 once the nominees approved by the Senate Judiciary Committee 

this week get a final Senate vote. And the president has not even submitted nominees for half of these vacancies. 

The current pace of appellate court confirmations exceeds the confirmation rate 

of the Senate when it was under Republican control, contradicting right-wing 

claims. The Senate has thus far confirmed 14 appellate court nominations, 11 of 

which were confirmed during the first year of Democratic control. In comparison, 

Republicans averaged less than 8 confirmations per year between 1995 and 2000. 

Because of the delay and refusal to vote on President Clinton’s nominations during 

that period, the total number of vacancies on the courts of appeals more than doubled from 1995 to 2001, growing from 16 to 33. In the last year, despite several new 

vacancies, the total number of appellate court vacancies has decreased to 27. In fact, 

if Republicans had moved at the same pace that the Democratic Senate has moved 

since July 2001, there would now be only 6 vacancies on the courts of appeal. This 

flatly contradicts accusations that no progress has been made on appellate court 

nominees—accusations leveled by many of the same right-wing Senators and advocates who helped create and perpetuate the large numbers of appellate court vacancies. 

The current situation calls for an unprecedented bipartisan solution. The President should reject the demands of the far right, and submit more moderate nominees who are truly qualified for the federal bench. This should include genuine consultation with Senators of both parties both before and after nominations are made. 

This is the way that more progress can responsibly be made in further reducing the 

number of vacancies on the federal courts.

Mr. CHABOT. And I have to comment that I think you set a 

record for the number of times in this Committee that the terms 

‘‘far right’’ and ‘‘right-wing’’ have been injected in testimony. 

Mr. NEAS. I learned a lot from the right about repeating the message. 

Mr. CHABOT. Thank you. 

Ms. Daly, you are recognized for 5 minutes. 

STATEMENT OF KAY DALY, COMMUNICATIONS DIRECTOR AND 

SPOKESPERSON, COALITION FOR A FAIR JUDICIARY 

Ms. DALY. Thank you, Mr. Chairman and Members of the Subcommittee, for inviting me to testify today on the cause and effect 

of the vacancy crisis in the judiciary. First let me state for the 

record that I am not an attorney. While that might be an applause 

line in many corners of this country, I find myself outnumbered in 

this hearing today by attorneys at the top of their profession. 

Please be gentle with me. I am a stay-at-home mom with a beautiful 18-month-old baby boy and another child on the way. I find 

the time to help the coalition because as a mother I am deeply concerned for our generation and the ones that follow about the independence of our Federal judiciary and the direction that the confirmation process is currently taking in the United States Senate. 

This judiciary is not immune to injury. The public does not distinguish between fact and fiction once fabrication reaches critical 

mass. Instead the public just discounts everyone involved. Most 

Americans might not know the difference between a Federal court 

and tennis court, but they do know, thanks to the ninth circuit ruling on the Pledge decision, that something is terribly wrong with 

our Federal judiciary. 

Effectively the Senate and judicial confirmation process have 

been hijacked by a growing number of leftist groups. The modus 

operandi is simple: A consortium of left wing groups led by People 

36

for the American Way meet regularly to plot against targeted nominees. Research is conducted with an eye to gotcha politics. Funding 

pours in from unions, Hollywood, trial lawyers and, curiously, 

media outlets. More research staff is hired. 

Vicious reports on judicial nominees laced with message points 

are formulated and distributed. As if by magic, these vitriolic message points bounce from the various Websites of these organizations to echo in the marathon questioning of judicial nominees by 

robotic Democrats during confirmation hearings to finally land in 

the pages of the New York Times. They look for anything, anything 

at all, even including a membership in a men’s only fly-fishing club 

that they can use to charge a nominee with being racist, sexist, bigoted, homophobic or any variation of that ultimate moniker, conservative. 

Then they trot out their favorite purported legal ethicist to criticize the supposed lack of ethics for the nominee, criticizing the 

nominee, for example, because he liked to fish at a lake where his 

grandfather used to take him. Meanwhile, because of Senate traditions and customs, the nominee is unable to speak out to defend 

himself except at confirmation hearings, which are delayed for 

months and sometimes years, to permit the drumbeat of ethics criticism to continue in the media unobstructed. 

If the end results weren’t so catastrophic to our judicial system, 

this well-oiled machine would be a thing of beauty. It is tough to 

perceive objectivity and an emphasis, though, who was photographed on top of a car at Northwestern University in a protest as 

the leader of the radical Students for a Democratic Society surrounded by police officers, and yet this describes a favorite ethicist 

used by left-wing organizations. Accusations from these liberal 

groups are bent not on disclosing the truth, but ensuring the preservation of an activist agenda by manipulating the composition of 

the most powerful branch of the Federal Government. Meanwhile 

a beleaguered nominee and his family must endure the excruciating ordeal of watching helplessly as their family name is 

dragged through the mud. 

Politicians sign up for political campaigning and all that it brings 

with it. Judicial nominees do not. Instead, they have spent a lifetime building extraordinary legal careers only to find that being 

called by their President to public service is an invitation to witness the destruction of all they have worked for. One has to ask 

the question at what point will the need for self-preservation outweigh the honor of serving the Nation on the Federal bench? 

What scares me as a citizen is not that the distortions aren’t just 

mistakes created by sloppy research, they are planned 

misstatements, deliberate omissions of fact, coming from our elected representatives as well the self-interest groups that appear to 

be in control over our Senate Judiciary Committee. These folks actually seem proud of their efforts. 

While the Senate has become mired in a morass of delay and 

partisanship, there has been a flurry of activity on one front in the 

Senate Judiciary Committee. In an attempt to remake the advise 

and consent role of the United States Senate, New York Senator 

Charles Schumer has held several hearings on the role of ideology 

in the confirmation process as an outspoken proponent of ideologVerDate Jan 17 2002 15:35 Nov 21, 2002 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6601 G:\WORK\CONST\101002\82264.000 HJUD1 PsN: 82264
37

ical litmus tests. For those of you who subscribe to litmus tests, 

would Louis Brandeis, would Benjamin Cardozo, would John Marshall Harlan or even David Souter, Byron White, would any of 

these Justices have passed this litmus test today? 

I have a series of written testimony statements about some of 

these organizations. One I focus on is the Americans United for 

Separation of Church and State. This is one of the only groups that 

has come out in favor of the ninth circuit decision. It is truly extraordinary to see what kind of groups have hijacked this process. 

Now, clearly the advice and consent process in the Democraticcontrolled Senate has been captured by the most extreme elements 

of the Democrat base. If this pattern continues, we may as well just 

abandon historic constitutional fences. The laws that you pass here 

in Congress will mean nothing because the activist judges will feel 

compelled to rewrite as the mood of the agenda strikes them. It is 

ironic that those Bush judicial nominees so stridently opposed by 

left-wing organizations are strict constructionists who would not 

meet judicial activism with judicial activism. These are judges who 

will apply the law as they find it, rather than stretching the Constitution like a rubber band to fit the political agenda of the day. 

If this continues, eventually the only people who will wind up on 

the Federal bench will be a group of activists approved by extremist elements. The notion of fair Federal judges and the independence of the judiciary will be shredded relics. My son and unborn 

child and millions of American children deserve a far better legacy. 

Mr. CHABOT. Thank you very much. We appreciate your testimony. 

[The prepared statement of Ms. Daly follows:]

PREPARED STATEMENT OF KAY R. DALY

Thank you, Chairman Chabot and Members of the Subcommittee, for inviting me 

to testify today on the cause and effect of the vacancy crisis in the federal judiciary. 

My name is Kay Daly and I am the spokesperson for the Coalition for a Fair Judiciary. The Coalition for a Fair Judiciary is an organization comprised of more than 

70 diverse grassroots groups dedicated to supporting qualified, capable federal judicial nominees who are committed to fair, impartial, and unbiased interpretation of 

existing law. We believe that judicial activism, characterized by rulings that create 

law rather than apply the law, has had a detrimental impact on American society 

and commerce. We seek to support federal judicial nominees who, in the words of 

Socrates, will ‘‘hear courteously, answer wisely, consider soberly and decide impartially.’’

The Coalition focuses on all federal judicial nominees, including nominees to the 

Court of Appeals, U.S. District Courts, and the Supreme Court. The coalition we 

have managed to put together crosses ideological, racial and theological lines. One 

thing steadfastly holds us together—to see that the most qualified and self-disciplined judicial nominees who respect the protective limits of judicial restraint are 

confirmed to the federal bench. 

First, let me state for the record that I am not an attorney. While that might be 

an applause line in many corners of this country, I find myself outnumbered in this 

hearing room today by attorneys at the top of their profession. Be gentle with me. 

As a communicator who has experience in corporate, legal, political and crisis 

communications, I can assure you that no greater challenge has crossed my desk 

in recent years than the judicial nominations process. As one gains years of experience as a communicator, one learns that excellent communicators always try to tell 

the truth. For once truth is no longer a valuable commodity, once truth becomes 

buried by a ‘‘win at all costs’’ agenda, we all suffer. And once venerable institutions 

like the judiciary suffer irreparable harm. 

The judicial branch of government is not immune to injury. Once the public learns 

distrust, re-education is a long term and difficult endeavor. It’s not as if the bad 

guys are the only ones who lose. Everyone loses. The public does not distinguish 

38

between fact and fiction once fabrication reaches critical mass. Instead, the public 

just discounts everyone involved. Often the best actor wins. 

For judges, the process of being nominated has become brutal. As you all are 

keenly aware, once a nominee starts down the confirmation path, he is essentially 

gagged until the confirmation hearing. The months, weeks, and for many of President Bush’s nominees, the years that pass before the confirmation hearing are 

marked by a well-orchestrated smear campaign marked by unfounded charges, ad 

hominem insults, red herrings, canards, personal attacks, innuendo and outright 

fabrications. Accusations from well-funded extreme liberal groups are bent, not on 

disclosing truth, but ensuring the preservation of an activist agenda by manipulating the composition of the most powerful branch of the federal government. 

Meanwhile, a beleaguered nominee and his family must endure the excruciating ordeal of watching helplessly as their family name is dragged through the mud. 

Our parents probably told most of us that we can spend years building a solid 

reputation, but it takes only a few seconds to destroy it. What should any of us do 

when mean-spirited, perhaps even callous persons are the catalysts? Where is the 

recourse? How do we stop it? 

Politicians sign up for political campaigning and all that it brings with it. Judicial 

nominees do not. Instead, they have spent a lifetime building extraordinary legal 

careers only to find that being called by their President to public service is an invitation to witness the destruction of all they have worked for. It means the destruction of their credibility, their integrity, and their reputation due to no fault of their 

own. They are persecuted simply because they were called by a President who didn’t 

represent a particular political platform. 

One has to ask the question: at what point will the need for self-preservation outweigh the honor of serving the nation on the federal bench? Having witnessed the 

morass into which the confirmation process has devolved, we have arrived at the 

point contend, ‘‘I just won’t put my family through this.’’

What scares me as a citizen is that the distortions aren’t just mistakes created 

by sloppy research. They are planned misstatements, deliberate omissions of fact, 

coming from our elected representatives as well as the self-interest groups that appear to be in control of our Senate Judiciary Committee. These folks actually seem 

proud of their efforts. 

I find the lack of civility disgraceful and disrespectful not only to the people nominated but to American democratic insitutions. How have we lost our conscience? 

How have we become this rude? How have we become indifferent to appropriateness 

and so disrespectful? 

The Washington Post editorial page, which has written often and consistently on 

the judicial confirmation process, has similarly stated: ‘‘Failing to hold [hearings] in 

a timely fashion damages the judiciary, disrespects the president’s power to name 

judges and is grossly unfair to often well-qualified nominees.’’ (November 30, 2001) 

Effectively, the Senate has been hijacked by the political terrorism of extreme left 

wing groups like the ultra-liberal People for the American Way. Their goal is to preserve liberal judicial activism of the past and ensure further activism in the future. 

These groups are well funded, well organized, and they have the run of the Senate 

Judiciary Committee. People for the American Way enjoys funding from the Hollywood left and curiously, several media outlets. I wonder whether the Disney company is aware of PFAW’s continual support and defense of Internet pornography 

and children’s access to it. 

The modus operandi of People for the American Way and associated organizations 

is simple. It starts with an ‘‘investigation’’ of the nominee. They look for anything 

that can point to a one-word charge: racist, sexist, homophobe. If all else fails, the 

label can be ‘‘conservative’’ or any variation of that moniker. 

Then, they trot out the self-proclaimed legal ethicists. Needless to say, these 

ethicists support the position of these organizations, clucking about how the sky will 

fall and justice as we know it will cease to exist if the nominee is confirmed. Curiously, though, these ethicists usually have an extensive history of supporting liberal 

causes and candidates. They leave a trail like an elephant with a nosebleed in the 

snow. 

It is tough to perceive objectivity in an ethicist who was photographed on top of 

a car at Northwestern University protesting the Vietnam War as leader of the radical Students for a Democratic Society (SDS) surrounded by police officers. And yet, 

this describes a favorite ethicist used extensively by Ralph Neas, president of People 

for the American Way to discredit judicial nominees. 

Another ‘‘objective’’ legal ethicist wrote an article for The Nation entitled ‘‘The 

Other Y2K Crisis’’ on July 26, 1999, in which he made his political sympathies entirely known while describing himself as ‘‘progressive.’’ In the article, he ‘‘objecVerDate Jan 17 2002 15:35 Nov 21, 2002 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6621 G:\WORK\CONST\101002\82264.000 HJUD1 PsN: 82264
39

tively’’ wrote ‘‘My Y2K nightmare is that Republicans will win the White House and 

keep control of Congress.’’

Despite all of this, our President has nominated judges at a record pace. The 

President has now nominated 127 Article III judges to include 32 circuit, 94 district, 

and 1 International Trade judge. President Bush reached 100 nominations on May 

1, 2002, faster than any President in history. At the same point in their terms, 

President Clinton had nominated only 77 judges, former President Bush had nominated 49, and President Reagan had nominated 61 judges. 

The result of the political gamesmanship of Senate Democrats and their special 

interest allies is a vacancy crisis in the federal judiciary. In 1998, at a time when 

there were 50 judicial vacancies, Senator Leahy stated that the number of vacancies 

represented a ‘‘judicial vacancy crisis.’’

As of today, there are 77 vacancies out of 862 authorized circuit and district court 

judgeships, a 9% vacancy rate. The crisis has worsened substantially. Chief Justice 

Rehnquist’s recent year-end report on the judiciary labeled the current situation as 

an ‘‘alarming number of judicial vacancies.’’

The Judicial Conference of the United States has classified 30 of the current vacancies as ‘‘judicial emergencies.’’ The President has 21 individuals nominated to fill 

a seat designated as a judicial emergency. 

The 13 circuit courts of appeals, the courts of last resort in the vast majority of 

federal cases, face a particular crisis with 27 vacancies out of 179 authorized judgeships, an extraordinary 15.1% vacancy rate. The vacancy rate is an especially serious problem in light of the enormous caseload: Filings in the courts of appeals 

reached an all-time high last year and have increased 22% since 1992. 

Wallace D. Riley, former president of the American Bar Association and the State 

Bar of Michigan, wrote to Senator Leahy on February 13, 2002:

‘‘I am writing to express my concern that the U.S. Circuit Court[s] of Appeals, 

the courts of last resort in the vast majority of federal cases, face a particular 

crisis with . . . [an] extraordinary 19% vacancy rate....’’

‘‘I share Chief Justice Rehnquist’s concern about the effect continual delays 

are having on our judicial system. Our Judiciary is already overburdened by its 

current caseload and further delays could potentially place the federal appellate 

system on life support.

‘‘Numerous businesses and citizens are waiting for cases to be decided that 

may have substantial effects on their financial and personal futures. Having the 

resolution of their cases continuously delayed is unjustly punishing these litigants.

‘‘I urge you to heed President Bush’s call and act not as Republicans and 

Democrats, but as Americans. It is time [for] the Senate act for the good of our 

judicial system.’’

The Sixth Circuit Court of Appeals, covering Kentucky, Michigan, Ohio, and Tennessee, is operating at just over half strength, with 7 vacancies on a 16-judge court. 

In March 2000, at a time there were 4 vacancies on that court, Chief Judge Merritt 

of the Sixth Circuit wrote to the Senate Judiciary Committee about the crisis: ‘‘The 

Court is hurting badly and will not be able to keep up with its work load. . . . Our 

Court should not be treated in this fashion. The public’s business should not be 

treated this way. The litigants in the federal courts should not be treated this 

way. . . . The situation in our Court is rapidly deteriorating due to the fact that 

25% of the judgeships are vacant.’’

The D.C. Circuit Court of Appeals, which other than the Supreme Court is often 

considered the most important federal court in the Nation because of the constitutional cases that come before it, is operating with a third of its judgeships vacant 

(4 vacancies on a 12-judge court). 

The caseload in the federal courts can be expected to increase further as a result 

of the war on terrorism, as well as other criminal and civil matters that arise out 

of the September 11 attacks. 

The President has 7 nominees pending to the 6th Circuit, and 2 nominees pending 

to the DC Circuit. Three of these nominees (Jeff Sutton, Deborah Cook, and John 

Roberts) have been waiting since May 9th of 2001 for a hearing. 

The President has acted decisively in response to the vacancy crisis, but the Senate has not. The current pace of Senate confirmation is unacceptable, particularly 

as to circuit judges, and is far slower than in analogous circumstances in the past. 

In the first year of President Bush’s term in office successful nominees took an average of 112 days from nomination to confirmation. In the first year of President Clinton’s presidency it was an average of 52 days between nomination and confirmation. 

40

Despite the President’s record pace of nomination, the number of vacancies has 

actually increased due to the Senate’s slow pace of confirmation, which has not even 

kept up with judicial retirements. At the end of the 106th Congress there were only 

67 vacancies, and on the day President Bush was inaugurated there were 82. Now, 

there are 77 vacancies. 

To date, the Senate has confirmed only 14 of the President’s 32 circuit court nominees (44%). By contrast, President Clinton had 19 of his 22 circuit nominees confirmed by the same date (86%). 

At the least, it would seem the Senate should strive to treat President Bush’s 

nominees the same way President Clinton’s judicial nominees were treated in his 

second year in office. President Clinton had 100 Article III judges confirmed in the 

second year of his presidency. President Bush’s second year has seen only 52 Article 

III confirmations. 

Notwithstanding the vacancy crisis, the Senate voted on only 28 of the President’s 

66 nominees in President Bush’s first year in office (42%). Notwithstanding the especially serious vacancy crisis in the circuit courts of appeals, the Senate confirmed 

only 6 of the President’s 29 circuit nominees (21%). 

In President Bush’s first year the Senate voted on only 24 of the 44 nominees who 

were nominated before the August recess of 2001. That is a sharp departure from 

the Senate’s traditional practice with respect to first-year nominees of a new President. In the first year of the past three Administrations, all but one of the nominees 

who were nominated before the August recess were voted on and confirmed in the 

first year of the Presidency. 

The Senate’s treatment of the President’s first 11 nominees illustrates the Senate’s delay. On May 9, 2001, at an event in the East Room, the President announced 

the nomination of 11 judges—including 8 nominees for judicial vacancies classified 

as emergencies’’ by the Judicial Conference of the United States. All 11 nominees 

subsequently received a ‘‘well qualified’’ or ‘‘qualified’’ ABA rating. In March 2001, 

Senator Leahy referred to the ABA rating as the ‘‘gold standard’’ for evaluating judicial nominees. 

More than a year has now passed since those nominations, yet the Senate Judiciary Committee has not even held hearings for 4 of the 11 nominees. As The Washington Post editorial page stated almost exactly one year ago, ‘‘[t]he Judiciary Committee chairman, Democratic Sen. Patrick Leahy, has offered no reasonable justification for stalling on these nominations.’’ (November 30, 2001) 

The impact of Senate foot-dragging on Americans’ lives and the judicial system 

at large is hard to overstate. As Lloyd Cutler, President Clinton’s White House 

Counsel, and former Congressman Mickey Edwards, wrote in The Washington Post, 

‘‘Delay in confirming judges means justice delayed for individuals and businesses, 

and, combined with the bitter nature of some confirmation battles, it may deter 

many qualified candidates from seeking federal judgeships.’’ (March 13, 2002) 

Judicial nominees deserve a prompt hearing and vote in the Senate. On May 9, 

2001, the President made the following request of the Senate: ‘‘I urge Senators of 

both parties to rise above the bitterness of the past, to provide a fair hearing and 

a prompt vote to every nominee. That should be the case for no matter who lives 

in this house, and no matter who controls the Senate. I ask for the return of civility 

and dignity to the confirmation process.’’

During the 2000 presidential campaign, Senator Leahy stated: ‘‘I have said on the 

floor, although we are different parties, I have agreed with Gov. George Bush, who 

has said that in the Senate a nominee ought to get a vote, up or down, within 60 

days.’’

In his recent year-end report on the judiciary, the Chief Justice of the United 

States emphasized the same principle: ‘‘On behalf of the Judiciary, . . . I ask the 

Senate to schedule up or down votes on judicial nominees within a reasonable time 

after receiving the nomination.’’

In June 1998, at a time when there about 75 vacancies, Senator Daschle stated: 

‘‘We cannot wait for the judicial system to collapse before the Senate acts.’’ He asked 

for the Senate to ‘‘significantly accelerate the pace of scheduled judicial confirmations.’’

In July 1998, at a time when there were 68 vacancies, Senator Leahy stated: 

‘‘Those who delay or prevent the filling of these vacancies must understand that 

they are delaying or preventing the administration of justice. Courts cannot try 

cases, incarcerate the guilty or resolve civil disputes without judges.’’

The devastating effects of the judicial vacancy crisis can most readily understood 

by the almost half empty Sixth Circuit Court of Appeals. Those judges remaining 

on the court have displayed remarkable affinity for judicial activism, with a liberal 

bent that rivals the now infamous Ninth Circuit. 

41

Recently, the Sixth Circuit Court of Appeals issued a 5–4 opinion in Grutter v. 

Bollinger, which upheld the University of Michigan Law School’s policy of considering race and ethnicity in admissions decisions. While the legal basis for the decision is controversial, even more troubling are the claims by a minority of the court’s 

members that the Chief Judge (a Carter appointee) violated procedural rules in 

making the panel assignment in the case and in failing to circulate the plaintiffs’

en banc court petition to the full court in a timely manner. 

Both procedural abnormalities could have affected the outcome of the case and 

raise questions about whether the Chief Judge and others on the court have sought 

to take advantage of the Sixth Circuit’s vacancy crisis and the Democrats’ current 

6–3 majority. 

In August 1999, a three-judge panel of the Sixth Circuit consisting of two circuit 

judges and a visiting senior district judge decided a procedural issue in Grutter

without reaching the merits of the lawsuit. 

After the first appeal and before the filing of the second appeal, the Chief Judge 

inserted himself into the original panel—replacing the visiting senior district court 

judge—a practice which the Chief Judge apparently has engaged in on a regular 

basis outside of the knowledge of some members of the Sixth Circuit. This new 

three-judge panel then heard several interlocutory motions in the case, which were 

redirected to it by the court’s motions panel. 

When the case came back to the Sixth Circuit on its second substantive appeal, 

court rules required either that the original panel hear the appeal or that the appeal be randomly assigned to a new three-judge group: the so-called ‘‘must panel’’

rules. By assigning the case to the improperly constituted panel containing the 

Chief Judge, the court followed neither rule in this case. 

In addition, upon return of the case to the Sixth Circuit, only two of the three 

original judges on the panel were available to hear the next appeal. The court’s 

rules then required that the court fill out the panel by random assignment. Instead 

of following that rule (and without the knowledge of other members of the court), 

the Chief Judge remained on the panel to hear the substantive appeal. 

On May 14, 2001, plaintiffs in this case requested that the entire Sixth Circuit 

hear their appeal. At this time, the court consisted of eleven active judges, including 

two Republican appointees who had previously announced their intention to take 

senior status in the coming months. 

On June 4, 2001, the Chief Judge issued an order stating that the motion for an 

en banc hearing had come before the court, but that the court would hold the petition in abeyance until after the filing of the briefs. After the briefs were filed, the 

court would determine whether to submit the case to the en banc court or to a 

three-judge panel. Neither this order, nor the petition were circulated to the entire 

court. 

On June 18, 2001, the appellees filed their brief, but the court again failed to submit the en banc petition to the whole court. On July 1, 2001, one of the Republican 

appointees took senior status, and all briefing on the case was completed by the end 

of the month. Still, the Chief Judge failed to circulate the en banc petition to the 

court. 

On August 15, 2001, the second Republican appointee took senior status, leaving 

the Court with its current 6–3 Democrat majority and with a 5–4 majority to uphold 

the University of Michigan policy. Nonetheless, the Chief Judge eight days later referred the petition to the improperly constituted three-judge panel. 

Some five months later, and after questions were raised about the composition of 

panel, the Chief Judge notified the court of the existence of the en banc petition. 

At this point, the court had been reduced to nine members, including six Democratappointed judges. 

This is not the first time that the Sixth Circuit has engaged in apparent procedural abnormalities. In a 2001 death penalty habeas case, the court made an unusual and unprecedented procedural ruling which allowed it to bypass the decision 

of a three-judge panel to deny habeas relief to a convicted capital murderer. 

In In re John Byrd, 269 F.3d 585 (6th Cir. 2001), after a three-judge panel denied 

a defendant’s motion to file a second habeas petition, a majority of active judges on 

the Sixth Circuit voted to remand the case to district court for the development of 

a factual record to permit the en banc court to consider sua sponte the defendant’s 

second habeas petition. 

The Court also remanded the case to the Chief Judge of the Southern District of 

Ohio for appointment of a Magistrate Judge, rather than ending it back to the District Court judge to whom it was originally assigned pursuant to the court’s ‘‘blind 

draw’’ rules. 

42

According to one dissenting judge in the case, this action by the Sixth Circuit was 

‘‘lawless’’ and without support in 28 U.S.C. § 2254, the federal habeas corpus statute 

enacted pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA). 

According to the dissent, the en banc court essentially ‘‘fired the [three-judge] 

panel and [took] over the case sua sponte’’ and ‘‘unlike any habeas corpus case to 

ever come before this Court . . . the en banc court will not act as a reviewing body 

of the panel, but will become the panel itself.’’ 269 F.3d585, 598 (6th Cir. 2001). 

Has the response of the United States Senate been to rapidly confirm the President’s nominees to the Sixth Circuit? No. Instead of ‘‘advise and consent,’’ the process has deteriorated into ‘‘admonish and obstruct.’’ Effectively, while the Senate fiddles, the Sixth Circuit burns. 

There has been a flurry of activity on one front in the Senate Judiciary Committee. In a blatant attempt to remake the ‘‘advise and consent’’ role of the United 

States Senate, New York Senator Charles Schumer has held several hearings on the 

role of ideology in the confirmation process. He has been an outspoken proponent 

of ideological litmus tests. These hearings at best have been the source of further 

delay and at worst, seek to compromise the very independence of the third branch 

of government, the federal judiciary. But for those of you who subscribe to litmus 

tests, would any of the following brilliant legal minds have been confirmed under 

those guidelines? 

As Attorney General of the State of Kentucky, he prosecuted a Union general for 

the then ‘‘crime’’ of helping slaves to escape. Kentucky v. Palmer, 65 Ky. (2 Bush.) 

5 (1886). Who was he? The first Justice John Marshall Harlan, who, once on the 

bench, wrote the famous dissent in the Plessy v. Ferguson arguing against ‘‘separate 

but equal.’’

Prior to ascending to the bench early in the last century, he had become a millionaire twice over and had many big businesses as clients. In 1902, he proposed taking 

immunity from suit away from unions: ‘‘If unions are lawless, restrain and punish 

their lawlessness; if they are arbitrary, repress their arbitrariness.’’ In an 1899 brief 

to the Supreme Court on behalf of a shoe industry monopolist, he argued that ‘‘in 

certain things we have got to have a monopoly.’’ Seven past presidents of the ABA 

signed a petition declaring that he ‘‘is not a fit person to be a Member of the Supreme Court of the United States.’’ Who was he? The great liberal justice, Louis 

Brandeis. 

As a lower court judge, in 1927 he held that evidence obtained through an illegal 

search and seizure was admissible in a criminal proceeding. In doing so, he rejected 

a growing line of federal decisions that were at variance with his opinion. His attitude was that ‘‘a room is searched against the law and the body of a murdered man 

is found. The privacy of a home has been infringed and the murdered goes free. We 

may not subject society to these dangers.’’ Who was he? Benjamin Cardozo. 

Consider this fellow, a liberal’s dream nominee. He helped found the ACLU, was 

a legal adviser to the NAACP, wrote editorials in the New Republic and the Atlantic 

Monthly. Who was he? Felix Frankfurter, who turned out to be one of the great 

strict constructionist justices once on the Court. 

According to the ultra liberal group Alliance for Justice, this Supreme Court Justice has ‘‘has proven to side with the liberal bloc on most issues. [He] has consistently voted for women’s right to choose whether to abort, and he joined the majority 

in Stenberg v. Carhart, finding Nebraska’s ban on partial-birth abortion unduly burdensome. [He] also supports affirmative action and the strict separation of church 

and state. He voted in the minority of three in Mitchell v. Helms, holding that loans 

of federally funded equipment to parochial schools violated the Constitution. He 

supports the extension of the protection from discrimination against minorities and 

women to homosexuals.’’ Yet when this Supreme Court Justice was nominated, the 

Left screamed like scalded cats calling him a ‘‘stealth candidate.’’ Who is he? Justice 

David Souter. 

A lot of the groups claiming to represent the public interest are just plain extreme 

left wing groups who will say or do anything to push their narrow agendas. They 

are extremists, yet the Senate Judiciary Committee is listening to them and quashing nominees at their request. 

As a single example, let’s look at just one group that has exercised significant influence in quashing a number of Bush nominees. Americans United for the Separation of Church and State is headed by Barry Lynn, a Unitarian minister. The group 

claims to be a watchdog, here to save us all from the improper entanglement of 

church and state. 

Of course, if there is a Christmas cresh or a menorah or a Christmas tree displayed anywhere on public property, rest assured Americans United will be there 

to file a suit to have it removed. 

43

And the group backed a lawsuit against the mention of God in the Ohio state 

motto. 

They have a particular problem with the national motto, ‘‘In God we Trust.’’ When 

a Colorado school district decided to hang the motto in classrooms, Barry Lynn 

sneered, stating ‘‘I find it hard to believe that Colorado parents want their children’s 

schools run by remote control by a fundamentalist preacher in Tupelo, Mississippi.’’

(Stephanie Salter, Colorado’s Godly Idea, Tulsa World, July 23, 2000.) Lynn is a little unclear on this point, since he’s also said that the motto is meaningless when 

it is used on money; but that if children are exposed to the motto in public schools, 

it is dangerous because it is ‘‘a different and new use for promotion of religious 

ideas.’’ (Michael Janofsky, Colorado Asks: Is ‘‘In God We Trust’’ a Religious Statement?, NY Times, July 3, 2000.) 

Presumably, Americans United opposes the national anthem as well, since one of 

the later verses contains that motto as a lyric. 

And remember when the members of Congress stood on the Capitol steps last 

year following the attacks, and sang ‘‘God Bless America’’? Americans United has 

said that ‘‘this flagrant mixing of church and state is inappropriate.’’ (http://

www.au.org/press/pr090502b.htm (Americans United Press Release)) Moreover, they 

argue, it’s ‘‘divisive.’’ (Stephen Scott, Faith & Flag, The State, Columbia SC, November 9, 2001 (quoting Barry Lynn)). 

In their effort to save us from God, Barry Lynn and his group have been some 

of the most outspoken opponents of a number of Bush nominees, including Attorney 

General John Ashcroft, and Professor Michael McConnell. 

Barry Lynn told us back in 2000 that if John Ashcroft was confirmed as Attorney 

General, he would ‘‘take orders from extreme TV preachers and their political allies 

in the Religious Right’’. (Waveney Ann Moore, God Bless America—Right?, St. Petersburg Times, November 10, 2001.) We were additionally informed that Mr. 

Ashcroft’s comments criticizing various Supreme Court decisions were the type of 

opinions normally found only among ‘‘religious extremists and anti-government militias.’’ (http://www.au.org/press/pr11601.htm) 

More recently, Americans United is telling us that Congress’s nearly unanimous 

outcry over the 9th Circuit’s recent decision which banned the Pledge of Allegiance 

from public recitation, was mere ‘‘hysteria.’’ (http://www.au.org/churchstate/

cs7023.htm) 

Barry Lynn also led a campaign against the saying of an ecumenically approved 

prayer at Chicago’s September 11th memorial service a few weeks ago. Barry Lynn 

and Americans United are clearly advocating the removal of any vestige of religion 

from public life. 

But that’s not the half of it. 

At the same time, Barry Lynn and Americans United are trying to use the government, usually the courts, to attack religion wherever they find it. The group appears to believe that any government sale of land to a religious group is an illegal 

establishment of religion, and they fight such sales with lawsuits. 

They are attempting to use the federal courts to force Baptist foster homes in 

Kentucky to hire homosexual staff. (http://www.aclu.org/about/transcipts/

revlynn.html) 

They want the courts to force the Catholic Church to pay for contraceptives, presumably including abortions, for its employees. (http://www.au.org/churchstate/cs/

7023.htm) There’s no word yet on whether they will sue to force Jewish kosher delis 

to serve ham sandwiches. 

In a recent case, Americans United lost its bid to make the government treat religiously oriented schools differently from purely secular schools when issuing grants. 

Americans United argued that treating a religiously oriented school the same under 

the law as a secular school would violate the Establishment Clause. Fortunately, 

Americans United lost. Otherwise currently religious schools like Notre Dame, or 

former divinity schools such as Yale, Harvard might face losing federal grants, 

scholarships and aid money that supports students and funds research. 

Barry Lynn is also on record as opposing the use of ‘‘taxpayer funds for chaplains,’’ including military chaplains. (http://www.aclu/org/about/transcripts/

revlynn.html) I wonder if we can truly imagine our sons and daughters facing battle 

in the Middle East, without the benefit of spiritual counsel? 

I don’t think it matters whether you’re a Democrat or Republican, I believe you’d 

concede that Americans United presses an extremist agenda. To advance its position, Americans United needs a federal judiciary that is enthusiastic about its radical beliefs, a court that essentially willing to trump Congress and write law. 

That’s why they oppose President Bush’s judicial nominees. The Bush nominees 

who are judicial conservatives (regardless of their personal opinions), could not in 

44

good conscience usurp the power of the legislature the way Barry Lynn and Americans United want them to do. 

The advice and consent process in the Democrat controlled Senate has been captured by the most extreme elements of the Democrat base. 

Their control over the Democrats on the current Senate Judiciary Committee is 

bold. Ralph Neas’s People for the American Way has been extremely active in targeting highly qualified Bush nominees, as has the National Abortion Rights Action 

League, the Leadership Conference on Civil Rights, the National Organization for 

Women, Alliance for Justice and the list goes on. Their vitriolic message points are 

robotically repeated by Democrat senators in nomination after nomination. 

These groups meet regularly to plot against targeted nominees. ‘‘Research’’ is conducted with an eye to ‘‘gotcha’’ politics. Funding pours in from unions, Hollywood 

and trial lawyers. More ‘‘research staff’’ is hired. Reports on judicial nominees laced 

with message points are formulated and distributed. As if by magic, these message 

points bounce from the various websites of these organizations to echo in the marathon questioning of judicial nominees by Democrats during confirmation hearings to 

finally land in the pages of The New York Times. If the end results weren’t so catastrophic to our judicial system, this well-oiled machine would be a thing of beauty. 

If this pattern continues, we may as well just abandon historic constitutional 

fences. The laws you pass here in Congress will mean nothing, because the activist 

judges will feel compelled to rewrite them, as the mood or the agenda strikes them. 

Meanwhile, constitutional conservatives have been consistent on their view of the 

Senate’s role in the confirmation process. Thirty years ago, Barry Goldwater wrote 

‘‘The President of the United States should be given broad leeway in choosing judicial nominees who might reflect the same broad philosophy as his own on major 

matters of the day. So long as a nominee is a man of high ability, scholarship, integrity and diligence, without any significant conflict of interest in his past record, he 

should be confirmed by the Senate.’’ (68 ABA Journal 135 Feb. 1972). 

It is ironic that those Bush judicial nominees so stridently opposed by left wing 

organizations are strict constructionists who would not meet judicial activism with 

judicial activism. These are judges who will apply the law as they find it rather 

than stretching the Constitution like a rubber band to fit the political agenda of the 

day. 

Most Americans might not know the difference between a federal court and a tennis court, but they do know, thanks to the Ninth Circuit Court’s Pledge decision, 

that something is terribly, terribly wrong in the judiciary. 

I am a mom—a stay-at-home mom. I have a beautiful 18-month old boy and have 

another child on the way. It doesn’t take long after the birth of your first child to 

figure out what is really important in this life. This nation has given my family 

much, and every generation of my family has felt indebted and has answered the 

call to service whether it be on a battlefield, in the political process, or simply as 

a decent citizen who contributes to the betterment of society. I can think of no better 

tribute to either those that have gone before me or generations to follow than preserving the legacy of a nation that has a court system intact with the rule of law 

paramount to all involved.

45

APPENDIXES


ApdxA.eps
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ApdxB.eps
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ApdxC.eps
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ApdxD.eps
49


ApdxE1.eps
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ApdxE2.eps
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ApdxF1.eps
52


ApdxF2.eps
53


ApdxF3.eps
54


ApdxG1.eps
55


ApdxG2.eps
56


ApdxH1.eps
57


ApdxH2.eps
58


ApdxH3.eps
59

Mr. CHABOT. And now the Committee Members will have the opportunity to ask questions for 5 minutes, and I recognize myself for 

5 minutes for that purpose. 

Let me start with Mr. Gaziano. I couldn’t help but notice when 

Mr. Neas was talking about the 35 percent of Clinton’s appointees 

being blocked and some of his other comments in his testimony 

that you were shaking your head. So rather than ask you a long 

question, I would ask you what were your thoughts at that point, 

and what comments would you like to make? 

Mr. GAZIANO. You can do a lot of funny things with percentages. 

That is why I tried to stick to some of the most obvious ones. But 

if you are going to make those kinds of comparisons, I would say 

there are three things that make the comparison apples to raisins 

or something like that. The first is he is comparing a period at the 

end of a President’s second two terms to a period of the first. 

More importantly, though, you have to look at the court of appeals nominees themselves. Many of the ones that President Clinton made were not with home State Senator support. President 

Bush hasn’t done that. Ohio, your home, as you know, both home 

State Senators supported all of the nominees. It has been a tradition in the Senate to check with the home State Senators. Many 

of the nominees that are in this 35 percent were without home 

State support. Others, of course, were made late in the process, too 

late for the Senate to reasonably act on them. 

Now, there were one or two that were held up. Most of them 

were eventually confirmed by the Senate. I am not saying there 

wasn’t a slowdown. The slowdown, of course, was worse at the end 

of the Bush administration. There were far more court of appeals 

candidates left stranded that should have been given a hearing 

than at the end of the Clinton administration, including, by the 

way, John Roberts and Dennis Shedd. John Roberts, who has not 

even been given a hearing after 520 days, was really nominated 

about 10 years ago and renominated, of course, by George W. Bush. 

But if you factor all four of those things out, the percentage that 

Ralph Neas gives is really meaningless. The fairness point is how 

long does the average court of appeals nominee wait for Senate action, and those statistics are just undeniably bad. 

Mr. CHABOT. And the numbers you mentioned were 500 days 

now compared to, say, back in the Reagan administration, 35 days. 

Mr. GAZIANO. That is right. It did pick up in Bush I to something 

like——

Mr. CHABOT. And Senator Leahy had proposed that a reasonable 

period of time would be like 60 days. 

Mr. GAZIANO. And I should also add in 1997 and again in 1998, 

in different statements when he is proposing this legislation, he described vacancy rates that were much lower, including much lower 

on the courts of appeals. There were about 22 court of appeals vacancies then. He described that as a judicial vacancy crisis that endangered the administration of justice, and by his own standards, 

it was so then, it is even worse now. 

Mr. CHABOT. Mr. Eastman, let me turn to you. At a March 14, 

2002, press conference, Senator Daschle rejected the President’s request to allow the full Senate to vote on the nomination of Charles 

Pickering to the fifth circuit because he said that doing so would 

60

‘‘break a 200-year-old precedent.’’ The precedent to which Senator 

Daschle referred to is unclear. In your estimation is there any room 

for doubt under article II, section 2 of the Constitution that it is 

the role of the full Senate to confirm the President’s judicial nominees? 

And secondly, Federalist Paper No. 76 states that the President 

is bound to submit the propriety of his choice to the discussion and 

determination of an entire branch of the Legislature. What does 

‘‘the entire branch of the Legislature’’ mean, and what bearing does 

this have on your interpretation of article II, section 2? 

Mr. EASTMAN. The power in article II is clearly to the entire 

branch, the entire Senate, and it is not a power simply to confirm. 

They do have the power to reject the confirmation as well. But they 

are obligated to take some action so if the President’s nominee is 

rejected, the President can rename a nominee. To do otherwise is 

to shift the appointment power away from the President to Committees in the Senate or, worse, to individual Members in the Senate. It is to create a national power and give it to a single Senator. 

That the Founders never contemplated and envisioned. 

And I don’t know what Senator Daschle’s precedent that he is referring to either is. It doesn’t exist. The power that is given in article II is to the Senate as a body, and it is an obligation. It is just 

not a discretionary power. 

Mr. CHABOT. Thank you very much. 

I want to ask another question. I have 2 seconds, and the light 

is ready to go off. At this time I recognize the gentleman from Virginia, Mr. Scott, for the purpose of asking questions for 5 minutes. 

Mr. SCOTT. Mr. Gaziano, you mentioned that infamous Pledge 

case. Who appointed the judge that wrote the case? 

Mr. GAZIANO. It was a Republican nominee, I am not sure who, 

and the judge has since withdrawn his support for that opinion, I 

should add. 

Mr. SCOTT. It was a Republican President who appointed the 

judge? 

Mr. GAZIANO. Yes. I remember reading that. 

My point was that the jurisprudence of a circuit is skewed, 

though, when senior judges are sitting as a majority on a panel regardless of the precedent. 

Mr. SCOTT. You have answered the question. I have other questions. 

Somebody mentioned the right wing—the left wing does research 

on nominees, and the right wing doesn’t do research on nominees. 

I want to ask a question. I want to point out the right wing didn’t 

have to do research on many nominees during the Clinton period 

because no hearings were ever held. Can anybody explain to me 

how many hearings were held on fourth and tenth circuit nominees 

during the Clinton administration? How many hearings were held 

on President Clinton’s fourth circuit nominees? And he had at least 

one judge pending for at least—for 6 consecutive years, at least 

somebody was pending during that entire time. 

Mr. EASTMAN. I was a law clerk in the fourth circuit during that 

period of time, and I can tell you that two of the Clinton nominees 

were actually confirmed to the bench, Diana Motz from Maryland 

61

and Blaine Michael from West Virginia. There were clearly hearings, and the notion that there were no hearings is simply false. 

Mr. SCOTT. In the last 6 years? 

Mr. EASTMAN. We can play the tit for tat game and ask—you can 

go back and ask Terry Boyle what happened in the 1990’s. The 

point of the issue is if you want to take out a single example rather 

than the overall lockstep change in the policy that is occurring——

Mr. SCOTT. He had two judges from North Carolina——

Mr. EASTMAN. And Roger Gregory is now sitting on the bench, 

Mr. Congressman. 

Mr. GAZIANO. I would add if there were injustices done, this 

President in an act of goodwill renominated the recess appointee 

from Virginia, Gregory, and he is now sitting on the court. So this 

President has worked mightily. 

Mr. SCOTT. When the Republicans controlled the Senate, did any 

of the African American nominees ever get a hearing? No. 

Mr. GAZIANO. I don’t know. But in other circuits I know that they 

did. 

Mr. SCOTT. Roger Gregory had gotten a hearing when the Democrats had taken over. 

Mr. GAZIANO. After President Bush nominated him. 

Mr. SCOTT. The Clinton nominees, African Americans appointed 

by Clinton never got a hearing; isn’t that right? 

Mr. GAZIANO. That is not true across the Nation. 

Mr. SCOTT. Fourth circuit. 

Mr. GAZIANO. There was only one judge nominated in the fourth 

circuit, and regardless——

Mr. SCOTT. Is it your testimony that one African American was 

appointed to the fourth circuit by Clinton? Is that your testimony? 

Mr. GAZIANO. I believe that he was——

Mr. SCOTT. I can name three. I can name three. 

Mr. GAZIANO. Three nominees to the fourth circuit? 

Mr. SCOTT. Gregory and another one from North Carolina, a district court judge. 

Mr. GAZIANO. The one——

Mr. SCOTT. Never a hearing. If you call them up and you state 

your reasons and defeat them, that is one thing. Never a hearing. 

Mr. GAZIANO. How late were the others nominated? 

Mr. SCOTT. There was somebody pending. 

Mr. GAZIANO. Did they have home State Senate support at that 

time? 

Mr. SCOTT. Never a hearing. 

Mr. GAZIANO. That is an important process in the Senate. You 

may object to it. 

Mr. SCOTT. What about the tenth circuit? 

Mr. GAZIANO. I don’t know. 

Mr. SCOTT. President Bush came in and rejected the role of the 

ABA. The Senators want the ABA information. Usually that information is available when the appointment is made. Is that one of 

the reasons for holding things up? 

Mr. EASTMAN. Let me address that, Congressman. The ABA’s reports on Michael McConnell and on John Roberts and on Miguel 

Estrada, all of whom received well qualified ratings, were within 

62

60 days of the nominations. That doesn’t account for the last nearly 

year and a half of delay in holding hearings or Committee votes. 

[9:58 a.m.] 

Mr. SCOTT. So it did have something to do with hold-up. Let me 

just make one other comment. 

Mr. EASTMAN. No, you did not characterize my statement. It did 

not have anything to do with the year and a half in delays and 

hold-up. 

Mr. SCOTT. It had something to do with the hold-up. 

Mr. EASTMAN. No, sir. None. A year and a half after later——

Mr. SCOTT. Sixty days. 

Mr. EASTMAN. A year and a half after their report was in does 

not account for the hold-up. 

Mr. SCOTT. Let me ask one other question. You have indicated 

a dislike for confirming judges based on ideology. How does it work 

if the President is appointing someone solely for ideology? Is the 

Senate not supposed to look at the ideology of a candidate? 

Mr. EASTMAN. I addressed this, Congressman, at length in my 

prepared testimony. And it is very important. I do think ideology 

plays a role. If you ask a nominee will they fullfil their oath to defend the Constitution, or will they impose their personal predilections from the bench, and the answer is they would impose their 

personal predilections, it is my view that that is a disqualifying 

statement of ideology. 

What you are talking about is something completely different. 

You are objecting to people who have demonstrated a commitment 

to the rule of law and to fulfilling their oaths of office from the 

bench. That is not an improper use—that is not a proper use of ideology in a refusal to confirm nominees. 

Mr. CHABOT. The gentleman’s time has expired. The gentleman 

from Alabama, Mr. Bachus, is recognized for 5 minutes. 

Mr. SCOTT. Mr. Chairman. 

Mr. CHABOT. Yes. 

Mr. SCOTT. Could I state one thing for the record? The other 

judge that I mentioned was James Beatty from the Middle District 

of North Carolina, who never had a hearing. 

Mr. CHABOT. So noted. 

The gentleman from Alabama, Mr. Bachus. 

Mr. BACHUS. Thank you. 

Dr. Eastman, this past March, Senator Daschle held a press conference and rejected President Bush’s request that the full Senate 

vote on the nomination of Charles Pickering to the fifth circuit. 

And the reason that Senator Daschle gave for not having a vote of 

the full Senate is he said it would break a 200-year precedent. The 

precedent to which Senator Daschle refers to I am not aware of. 

But in your estimate, is there such a precedent, or is there any 

room for doubt under article II, section 2 of the Constitution that 

it is the role of the full Senate to confirm the President’s judicial 

nominees? I mean, that was my understanding from constitutional 

law. 

Mr. EASTMAN. Mr. Bachus, I think article II is pretty clear: The 

power—the advice and consent power is a check on the President’s 

preemptive primary role in appointing judges. And it is a power 

63

that is to be exercised by the entire Senate, not by an individual 

Senator and not by individual Committees. 

What we have here—and I don’t want to discount the role of the 

Committee process or the Committee in the overall process—but 

when a Committee declines to pass somebody out to the full Senate 

who lacks majority support, and it is clear that the nomination is 

not going to be confirmed, I would not say that that violates the 

Constitution. But we have got something here that is completely 

different. We have in fact the Senate Judiciary Committee refusing 

to report out people precisely because they have Majority support 

in the United States Senate. And I think that is an abuse of the 

advice and consent role, and that is a violation of article II. 

Mr. BACHUS. I will read to you Federalist Paper No. 76, and ask 

you if this has anything to do with the issue. It states that the 

President is, and I quote, ‘‘bound to submit the priority of his 

choice to the discussion and determination of an entire branch of 

the legislature.’’

What does the entire branch of the legislature mean? And what 

bearing does this have on your interpretation of article II, section 

2? 

Mr. EASTMAN. Well, Alexander Hamilton, when he wrote that 

Federalist Paper, clearly was referring to the entire United States 

Senate. And I think there is no dispute that the text of the Constitution gives the advice and consent power, a power to check the 

President, to the entire Senate, not to individual Members. And I 

would say that one of the problems with the blue-slip policy, for example, that developed in the Senate out of senatorial courtesy was 

that it gives a single Senator the ability essentially to veto a judicial nominee. It is bad enough when that power is exercised by 

home State Senators for nominees in their home State. The presumption was that they had their own sources of information about 

the character of that candidate. 

But when you expand the blue-slip policy, as we have done recently, to let a single Senator essentially veto any nominee from 

anywhere in the circuit, the natural limits to the blue-slip policy 

that the President could just appoint somebody from another State 

are gone. And without the limits on that policy, I think you have 

seen the abuse of the policy, particularly in the Sixth Circuit Court 

of Appeals. 

Mr. BACHUS. Thank you. 

Mr. Neas, I was just sort of writing down some of what you said. 

You said there are too many right-wing nominees, and you said 

there ought to be more left-wing nominees. 

Mr. NEAS. I think it was more moderate, I believe. 

Mr. BACHUS. Okay. So they need to be—you can’t appoint rightwingers or left-wingers? They have to be moderates? Is that——

Mr. NEAS. The President, of course, can nominate whoever he 

wants to nominate. But if he takes ideology into account, certainly 

the Senate for the last 200 years has also taken ideology into account. 

What I mean by right-wing, by the way, Mr. Bachus, is that if 

you recall, in November and December 1999 and throughout 2000, 

George W. Bush said, ‘‘Listen, my favorite judges are Scalia and 

Thomas.’’

64

Now, those are two excellent examples of some—what I would 

consider to be, a right-wing judge; someone who, like several people 

on this panel, would like to go back to before the New Deal and 

overturn 65 years of precedents. 

Mr. BACHUS. Would you say that both those gentlemen are unqualified to serve in their positions which they now serve in? 

Mr. NEAS. I think both individuals have certain qualifications, as 

the A B A—— Mr. BACHUS. No. I mean, do you think they are qualified to 

serve? They are serving. I mean, can you answer that question? 

Mr. NEAS. If they were up for confirmation, I would say they 

were not qualified, if you looked at qualifications that the Senate 

I believe should look at. 

Mr. BACHUS. Neither of those gentlemen, although they are on 

the Supreme Court today, in your opinion, neither are qualified to 

be there? 

Mr. NEAS. As I said, there are more factors that one looks at 

when looking at whether one is qualified for a judicial nomination 

than just having certainly legal skills. 

Mr. BACHUS. Well, is that a yes or no? 

Mr. NEAS. I would also consider having many other criteria that 

one looks at. Yes. 

Mr. BACHUS. That was a yes, they are qualified to serve? 

Mr. NEAS. I think I made myself clear. 

Mr. BACHUS. Is—what now? 

Mr. NEAS. I said, when looking at qualifications, legal skills or 

credentials are two criteria we look at. I would also look at other 

criteria, like a demonstrated commitment to equal justice under 

the law. 

Mr. BACHUS. Let me ask you this. Here, are you talking about 

your beliefs——

Mr. CHABOT. The gentleman’s time has expired. If you want to 

wrap it up. 

Mr. BACHUS. You know, when the Congress stood on the Capitol 

steps and sang God Bless America, did you consider that an appropriate action? 

Mr. NEAS. I have sung God Bless America many times, including 

right after 9/11. And, quite frankly, there are certain kinds of actions that I call ceremonial deism. And, quite frankly, I have no 

problem with you or anyone else going on the steps of the Capitol 

and singing God Bless America. 

Mr. BACHUS. So that was appropriate? 

Mr. NEAS. Again, I have no problem with certain people saying—

perhaps it is not a great idea for elected officials to use Government property to go and sing something that might be considered 

by some—I am not one of those who would make that determination, and I don’t think it was inappropriate. 

Mr. BACHUS. But you, yourself, thought it was appropriate? 

Mr. NEAS. I thought it was appropriate. Yes. 

Mr. CHABOT. The gentleman’s time has expired. 

I would ask unanimous consent that the gentlelady from Texas, 

Ms. Jackson Lee, who is a Member of the Judiciary Committee but 

not a Member of this Committee, be granted 5 minutes to ask questions. 

65

Without objection, the gentlelady is recognized for 5 minutes. 

Ms. JACKSON LEE. Mr. Chairman, I cannot thank you enough for 

your graciousness. Thank you very much to the Committee Members as well. I thank the witnesses very much for their presence 

here this morning. I simply have just a very brief question to Mr. 

Gaziano, if I have the name pronounced correctly. 

Mr. GAZIANO. Close. Close enough. 

Ms. JACKSON LEE. Thank you very much, sir. Just a simple question, yes or no. You are opposed—or do you believe there is politicizing of judicial appointments? Do you believe there is politicizing 

of judicial appointments? 

Mr. GAZIANO. The Senate has politicized them. The White House 

counsels from a number of Presidents have flatly refuted what Mr. 

Neas has said, that they took political ideology into account. 

Ms. JACKSON LEE. But you believe the Senate has. 

Mr. GAZIANO. The Senate has from time to time. And it shouldn’t 

take political ideology into account. It should look at judicial—I 

refer to the type of ideology that Professor Eastman referred to as 

judicial philosophy. That is okay for someone to look at, but not political ideology in and of itself. 

Ms. JACKSON LEE. Let me appreciate very much that response. 

And I am going to take just the narrowness of it, of politicizing, because we may both agree on that particular point. And for that reason, I have a series of questions I would like to pose to Mr. Neas, 

and I would like to lay the groundwork, because I am caught in betwixt and in between, coming from the State of Texas having great 

need. 

Let me suggest to you certain facts. Ron Clark, State representative Ron Clark, Republican nominee for State representative, was 

confirmed for a judicial appointment October 2, 2002. Ron Clark is 

a Republican. Ron Clark was supported by Texans, both Democrats 

and Republicans, for this particular position, again, depoliticizing 

the issue of need. 

According to the reports that have come to my attention, Ron 

Clark now has asked for a 6-month delay in the signing of his commission by the President of the United States. Recently, the Administrative Office of the U.S. Courts, September 24, 2002, has 

noted a 30 percent growth in Federal cases. In particular, the Eastern District of Texas was granted most recently a temporary court 

because 3,000 cases are backlogged. Since 1999, 146 judges have 

been confirmed, and the commission for each was signed by the 

President within 7 days. 

Now, with the dramatic need—and let me applaud the Senate, 

if you will, for responding to bipartisan support and the recognition 

of Mr. Clark’s ability to serve on the Federal bench—which I think 

is an extremely high honor—the great need that we have in the 

Eastern District, coming from Texas, being a former associate municipal court judge, recognizing that even as I took that position as 

a city court judge, that I was precluded from political activities. 

I note also in an article Friday, October 4, 2002, it indicated that 

Mr. Ross is still focused on his State legislative house race as a Republican. 

Mr. Neas, what would be your assessment, with the crisis of the 

judiciary as we understand from Supreme Court Justice—Chief 

66

Justice Rehnquist’s backdrop to this hearing in terms of politicizing, and noting that this individual was approved by the United 

States Senate, obviously, the leadership in the hands of the Democrats, and then the individual now asking for a 6-month delay to 

participate in the house race, and then continue to serve politically 

as a Republican in that manner? I ask—pose the question to the 

gentleman. 

Ms. NEAS. Congresswoman, I hadn’t heard about this until you 

brought it up this morning. It does seem to be a rather unusual, 

quite surprising, disturbing politicization of the process. It might 

also raise some interesting ethical issues. Again, this is my first 

impression. But I am quite surprised that someone would do that. 

Ms. JACKSON LEE. Any other—Dr. Eastman? 

Mr. EASTMAN. I too—it is the first I have heard of it. But, you 

know, to try and attribute that to the politicization of the White 

House in this process seems to me to be a non sequitur. The individual may——

Ms. JACKSON LEE. You would want to, in light of the great need 

in the Eastern District, you would think that the President would 

follow protocol and sign his commission so that he could ascend to 

the bench. I think that would certainly depoliticize and leave no 

room for doubt. Would it be appropriate for the President to move 

forward and sign his commission? 

Mr. EASTMAN. You know, I am not going to comment on something I don’t know anything about. 

Mr. CHABOT. The gentlelady’s time has expired. The gentlelady 

from Pennsylvania is recognized for 5 minutes. 

Ms. HART. Thank you, Mr. Chairman. 

Mr. Neas, Mr. Bachus actually asked you a little bit about this, 

but one thing he didn’t ask that I would like some clarification on: 

In your testimony you talk about nominees who should be, and I 

quote, ‘‘more moderate, mainstream nominees who reflect genuine 

bipartisan consultation.’’ Could you define ‘‘more moderate, mainstream’’ for me? 

Mr. NEAS. Yes. As I explained in part to the Congressman, we 

believe that the right has as its principle objective total ideological 

control of the Federal judiciary, Supreme Court and the lower 

courts, and that the President has nominated a number of individuals who we believe share the right-wing judicial philosophy of the 

Clarence Thomases and the Antonin Scalias. 

And our advice to the President and to Members of the Senate 

would be not to appoint more in the mode of Scalia and Thomas, 

but more moderate and more mainstream judges. 

Ms. HART. Okay. So you are asking for people who are not prolife, people who are pro-Roe v. Wade. You are asking for an ideology. 

Mr. NEAS. What I am asking for is to have judges who do not 

share the judicial philosophy of people like Michael Luttig or Edith 

Jones, who share the philosophy of Thomas and Scalia, who really 

want to go back 65 years and basically overturn approximately 100 

Supreme Court precedents that would undermine what the law has 

been for a long time on civil rights, reproductive rights and privacy, 

the environment, and many, many issues. There is no litmus test. 

We are talking about a judicial philosophy. 

67

Ms. HART. Mr. Neas, the Supreme Court is charged with ultimately challenging or answering challenges and overturning laws 

when they are wrong. It has done that historically. If the members 

of the Supreme Court are not willing to push the envelope and ask 

the question, what do you expect them to do? 

Mr. NEAS. Congresswoman, what I would hope and I think the 

debate today, over the last several years, going back really the entire history of our country, will be over what kind of Supreme 

Court Justice do we want. I want our Supreme Court Justices, I 

want Supreme Court Justices who do believe that the judicial philosophy that has been in place since about 1937 is a judicial philosophy that should continue. 

I would oppose right-wing jurists who would do everything possible to revisit them and to overturn them. 

Ms. HART. And you would oppose left-wing jurists? 

Mr. NEAS. Pardon me? 

Ms. HART. Would you also opposed a left-wing jurist? 

Mr. NEAS. I am not sure what you would define as a left-wing 

jurist. 

Ms. HART. So you are asking for a specific ideology. 

Mr. NEAS. If I may answer. If the left-wing jurist agrees with the 

fundamental civil rights decisions, civil liberty decisions, environmental decisions, and religious liberty decisions going back to 1937 

or so, I would support such a nominee. 

Ms. HART. Okay. That is clear. 

Ms. DALY. Congresswoman, if I could interject. 

Ms. HART. Sure. 

Ms. DALY. I think that Mr. Neas will not be satisfied until the 

ninth circuit is reflected in all of our courts, the most overturned 

court in our Nation. 

Ms. HART. You may be right with that last answer. 

Does anyone else on our panel believe that there should be a certain ideology sought in the judicial nominations process? 

Mr. EASTMAN. Congresswoman, I do. And I think the ideology is 

one spelled out in the Federalist Papers. The primary role of the 

judiciary is to interpret, not to make the law. And the ideology Mr. 

Neas is proffering is over the last 65 years a Supreme Court that 

has bent and reshaped the Constitution to its own will, has signed 

off onto excesses of claims of powers by this body, by the Congress 

of the United States, and has refused to fullfil its primary obligation to keep the political branches within the bounds of the Constitution itself. 

When you have a judiciary that will not play that fundamental 

role, you end up with political branches believing that the Constitution does not impose checks on their power, that provides them 

unlimited sources of power rather than specific enumerations and 

delegations of power. And we cease to live in the constitution of 

Government that the founders bequeathed to us. 

What Justices Thomas and Scalia and the judges who have followed the rule of law in their wake do is interpret, not make the 

law. That is the kind of ideological question that ought to be asked. 

And during the——

68

Ms. HART. So—before you go on. So when you talk about ideology, you don’t mean as far as positions on issues that have been 

heard or dealt with by the Court. 

Mr. EASTMAN. No, ma’am. 

Ms. HART. When you say judicial philosophy, you mean——

Mr. EASTMAN. Judicial philosophy. 

Ms. HART [continuing]. Judicial philosophy. 

Mr. EASTMAN. That is right. I mean fulfilling the obligation of 

the oath of office, which is to interpret, not to make the law. And 

to keep the political branches within the bounds of the powers assigned to them by striking down laws, not that simply are unwise, 

but that are in fact unconstitutional because they exceed the powers granted to the Congress. 

Ms. HART. I see my time has expired. Thank you. I yield back. 

Mr. CHABOT. I thank the gentlelady for her questions. I thank all 

the panel for their questions. And I particularly want to thank the 

witnesses here this morning for their testimony. I thought this was 

very helpful, very enlightening for the Members that were here. 

Members who were not able to make it will be able to review the 

testimony here today. I think the Federal judiciary vacancy crisis 

is one of the most significant crises that Government in general 

has facing it here in Washington. It has gotten too little attention. 

And you have helped to elevate the awareness of this body and the 

impact that it can have on the courts. So I thank you very much 

for that contribution. 

Mr. SCOTT. Mr. Chairman. 

Mr. CHABOT. And Mr. Scott has a unanimous consent request. 

Mr. SCOTT. Mr. Chairman, I ask unanimous consent that all 

Members have 5 legislative days to revise and extend their remarks and submit additional materials for the record. 

Mr. CHABOT. Without objection. 

Mr. SCOTT. And Mr. Chairman, I would also want the transcript 

of this hearing preserved so that when the next Democratic President has a Republican Senate, we won’t have to have the hearing, 

we can just reproduce the testimony. 

Mr. CHABOT. We will have it preserved. I would not stipulate, 

however, that there will ever come that. 

Ms. JACKSON LEE. Mr. Chairman. 

Mr. CHABOT. Hopefully at least not in my lifetime. The 

gentlelady from Texas is recognized. 

Ms. JACKSON LEE. Mr. Chairman, all things may be possible. But 

I would ask, as I guess on my unanimous consent time, to be allowed to submit an article from the Herald Democrat in Texas, Friday, October 4, 2002, into the record. 

Mr. CHABOT. Without objection. 

Ms. JACKSON LEE. Thank you, Mr. Chairman. 

Mr. CHABOT. Again, we thank the panel for being here this morning. And with no further business to come before the Committee, 

we are adjourned. 

[Whereupon, at 10:19 a.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD


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PREPARED STATEMENT OF CHIEF JUDGE DOUGLAS H. GINSBURG FOR

THE 2002 D.C. CIRCUIT JUDICIAL CONFERENCE

I am pleased to welcome you all to the 59th Judicial Conference of the D.C. Circuit, and the first at which I appear in the capacity of Chief Judge. Like you, I look 

forward to the events of the next few days, as well as to the many challenges that 

face the court in the years to come. 

Before we get started, I would like to welcome the new judges of the D.C. Circuit, 

who are attending their first Circuit Conference. Although we do not have any new 

Court of Appeals judges—more to follow on that later—I would like to welcome District Judges Reggie Walton, John Bates, and Richard Leon. It is a great benefit to 

have you as members of the district bench. 

In setting the goals for my term as Chief Judge, I recognized that several of my 

priorities are the same as those Judge Edwards established during his very successful tenure as Chief Judge. Things such as maintaining collegial relations among the 

judges in the Circuit, ensuring that the court’s automation services are ‘‘state of the 

art’’, and developing strong training and evaluation programs for all staff functions 

are crucial to the mission of the court. In addition to these ongoing objectives, my 

primary focus over the next few years necessarily will be the construction of the new 

courthouse annex. The official groundbreaking for the annex occurred on April 8, 

2002 at a ceremony held in front of the courthouse. We had a distinguished panel 

of speakers including Vice President Cheney and Chief Justice Rehnquist. As you 

may have seen, the initial stage of construction has begun. The excavation for the 

garage will be the next big step before full site excavation. The two and a half years 

of construction will be followed by renovation of the existing building for an additional two and a half to three years. 

Since last we gathered two years ago, a great deal has happened in the Court of 

Appeals—most of it in the last nine months. The first major event of the biennium 

was the celebration marking the Circuit’s 200th year of service to the District of Columbia and to the Nation. On March 8 and 9 of last year the Historical Society of 

the District of Columbia Circuit, chaired by Judge Louis F. Oberdorfer, sponsored 

an excellent symposium of addresses and panel discussions. The Executive Director 

of the bicentennial symposium, our former Circuit Executive Linda Ferren, helped 

oversee all of the logistics for that event. The symposium, held in the courthouse 

and in the Ronald Reagan International Trade Center, included a Keynote speech 

by our beloved alumna, Justice Ruth Bader Ginsburg, about the importance of the 

bicentennial celebration; a tribute to the U.S. District Court; a luncheon address by 

Chief Justice William H. Rehnquist; and four panel discussions. 

Undoubtedly the most noted case of the last two years was Microsoft. These consolidated appeals were not ordinary cases and they presented a myriad of special 

case management challenges. Web pages on the court’s Internet site were designed 

to make electronic versions of all docketed materials, as well as communications 

from the court, available to the parties and public in real time. The parties used 

an electronic case filing system that essentially allowed them to file and to docket 

their own pleadings. Interested parties could receive e-mail notification of new 

pleadings through a link on the court’s web site. The parties also filed their briefs 

in CD-Rom format with hyperlinks to every case, statute, or other document cited 

in the briefs. The aspect that proved technologically the most challenging was the 

live audio feed of the argument that was broadcast via the pool lines of the major 

networks and streamed onto the Internet. But, in the end, the argument went 

smoothly and it was heard live around the country. 

Finally, in the wake of the terrorist attacks of last September 11, the court has 

had to change many of its internal operating procedures in order to be more attentive to safety and security concerns. Everything from mail deliveries to emergency 

contingency plans have been reviewed. In addition, as a result of the anthrax scare, 

the Supreme Court put into action the contingency understanding with our court, 

and moved several of its October 2001 arguments to our courthouse. This was an 

historic event because it was the only time the High Court has heard arguments 

outside the Supreme Court building since it opened in 1935. 

I cannot conclude my remarks without noting the significant changes that have 

occurred over the last few years in the composition of the court of appeals. Although 

authorized by statute to have 12 active judges, the Court of Appeals now has only 

eight active judges—myself and Judges Edwards, Sentelle, Henderson, Randolph, 

Rogers, Tatel, and Garland. Judges Silberman and Williams have taken senior status in the two years since our last Circuit Conference. The court has not been down 

to eight active judges since 1980. While there are two nominations pending before 

the Senate, they have been pending for more than 13 months, and it is still unclear 

when and even whether they will be acted upon. It is clear, however, that if the 

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court does not have additional judges soon, our ability to manage our workload in 

a timely fashion will be seriously compromised. 

Indeed, in the Term just ending, the court had to cancel some days of oral argument. Cases that would have been heard on those days will not be heard until next 

September. For the upcoming term, the court has been compelled to adopt an argument calendar for only eight full-time judges and our part-time senior judges, whose 

combined service is the equivalent of one full-time judge. Over the nine months the 

court hears oral arguments, the court will hear cases on only 96 days and will be 

able to schedule only 336 cases. Were the court to have the services of the two pending nominees for next term, we could add about 20 sitting days and schedule about 

75 more cases; with three additional judges we could add 30 sitting days and schedule more than 110 additional cases. Because of the limited number of sitting days, 

the 2002–03 term argument calendar is already nearly full through March 2003—

an alarming prospect for litigants now in the District Court. 

Finally, each active judge on the Court of Appeals (except the Chief) is ordinarily 

assigned to a special panel for hearing emergency cases and all manner of motions 

for up to 16 weeks over the course of the calendar year. This duty is over and above 

the judges’ argument calendar. With only seven judges now available for special 

panels, each of them is serving 6 weeks of ‘‘overtime’’ emergency duty. Indeed, we 

have often been forced to constitute emergency panels of fewer than three judges 

because of vacancies on the court. If even two more judges were available, all such 

‘‘overtime’’ would be eliminated and each emergency panel would have its full complement of three judges. Thus, it is clear that the Senate’s inaction is coming to 

jeopardize the administration of justice in this Circuit. 

Finally, before we begin with the business of the Conference I want to recognize 

the Arrangement’s Committee for this Conference, which was chaired by Chief 

Judge Hogan, and included Circuit Judges Sentelle, Rogers, and Silberman, District 

Judge Huvelle, Professor Julie Rose O’Sullivan, and attorneys Dwight D. Murray, 

George W. Jones, Jr., Kevin T. Baine, and Daniel M. Armstrong. The Committee, 

along with Circuit Executive Jill Sayenga and Conference Planner Maureen Grant, 

has put together what should be a very interesting program. I would like also to 

thank Chief Justice William H. Rehnquist who will be appearing with Judge Patricia M. Wald on Friday morning to discuss issues related to international and military tribunals. 

I cannot close without recognizing the Court of Appeals mediators who are here. 

These men and women, all distinguished members of the Bar, mediate cases for the 

Court on a volunteer basis. The nature of our docket is such that many of the cases 

they handle are large, complex administrative appeals that require a great deal of 

effort if they are to be resolved by consensus; indeed, all the cases that are mediated—large and small—are time-consuming. The Mediation Program has now been 

in operation for nearly 13 years. We owe the panel, as well as its distinguished 

chairman, John H. Pickering, Esq., our continuing thanks for their pro bono work 

on these cases. 

It is now my pleasure to introduce the Chief Judge of the District Court, the Honorable Thomas F. Hogan, who will give the report of the District Court.

PRODEDURAL APPENDIX TO JUDGE BOGGS’ DISSENT

Although the following procedural matters do not directly affect the legal principles discussed in this case, it is important that they be placed in the record as 

an explanation of the manner in which this case came before the particular decisionmaking body that has now decided it. Since a person reading these opinions in sequential order will have read a variety of complicated responses attempting to defend what happened procedurally in this case, it may be well to begin with the 

plainest possible statement of undisputed primary facts. The panel that considered 

this case prior to, and certainly following, the filing of the present appeals was not 

constituted in conformity with 6th Cir. I.O.P. 34(b)(2) of this court’s rules, or any 

other rule. A motion that counsel made on May 14, 2001, for initial hearing en banc

was not transmitted to most members of the court for five months, and was not 

treated as stated in the court’s order of June 4, 2001. These facts speak for themselves, however each of us may choose to characterize them. 

The appeals regarding the Law School’s admissions program that we have today 

decided were filed as follows: case number 01–1447 on April 2, 2001, and case number 01–1516 on April 18, 2001. 

Under this court’s rules, these cases generally would have been assigned to a 

panel chosen at random. See 6th Cir. I.O.P. 34(b)(1). This was not done. Instead, 

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as a result of a series of decisions in contravention of our rules and policies, we arrived at the present configuration. 

In August 1999, a panel of this court, consisting of Circuit Judges Daughtrey and 

Moore and visiting Senior District Judge Stafford, in case number 98–2009, decided 

an appeal concerning the rights of certain parties to intervene in the district court 

case underlying the current appeal, but did not address the merits of the case. See 

Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999). 

Upon the filing of the instant appeals, a question could have arisen regarding 

whether these appeals, seeking review of cases already returned to the district court 

by a panel of this court, were ‘‘must panel’’ cases. See 6th Cir. I.O.P. 34(b)(2). It is 

absolutely clear that the applicable procedures for potential ‘‘must panel’’ cases were 

not followed to determine whether and how these cases should be heard as a ‘‘must 

panel.’’

If a panel has ‘‘returned a case to the district court for further proceedings’’ and 

another appeal has been taken from those further proceedings, the original panel 

‘‘determine[s] whether the second appeal should be submitted to it for decision, or 

assigned to a panel at random.’’ Ibid. If a district judge, as in this case, was on the 

original panel, the remaining two circuit judges from the original panel are required 

to decide whether the district judge should be recalled for the panel or whether a 

third circuit judge ‘‘should be drawn to fill out the panel; provided that, if oral argument is scheduled, the draw shall be made from the judges of this Court scheduled 

to sit at that time.’’ Ibid. These procedures were not followed in this case. 

While these cases were before the district court, several interlocutory motions 

were, in the usual course of our policies, referred to a weekly motions panel chosen 

at random. However, even though no second appeal had been filed, the motions were 

then redirected to the earlier panel, which had been augmented, at the direction of 

the Chief Judge, by the addition of the Chief Judge, not a randomly chosen judge. 

Following the filing of the current appeals, all further actions regarding those appeals, including a motion to stay the district court’s order, were handled by this 

preselected panel. 

This was the situation when, on May 14, 2001, counsel petitioned the entire court, 

pursuant to Fed. R. App. P. 35(b)(1)(B), asking that the cases be heard by the en 

banc court in the first instance. At this point, the en banc court consisted of eleven 

active judges: the nine judges who ultimately heard this case plus then-active 

Judges Norris and Suhrheinrich. The petition was not circulated to the entire court. 

Instead, on June 4, 2001, an order was issued, at the direction of the Chief Judge 

and in the name of the court, stating that the motion ‘‘c[ame] before the court,’’ but 

holding the petition for hearing en banc in abeyance ‘‘until such time as the briefs 

of the parties have been filed, after which the court will make a determination on 

whether the cases should be submitted to a three-judge panel for adjudication or be 

referred to the en banc court.’’ (emphasis added). This order was also not circulated 

to the en banc court. The Appellee’s proof brief was filed on June 18, 2001. The petition was still not circulated to the court. On July 1, Judge Norris took senior status. 

All briefing in the case was certainly completed by July 30, 2001. Even still, the 

petition was not circulated to the court. On August 15, Judge Suhrheinrich took senior status. The petition was still not circulated to the court. On August 23, 2001, 

according to our internal docket, the petition was ‘‘referred’’ to the specially constituted panel. I have no reason to doubt that Judges Moore and Daughtrey had not 

known of the petition prior to that time. The special panel still did not circulate the 

petition for an en banc hearing to the full court. 

Rather than circulating the still pending petition, the special panel scheduled the 

case for oral argument before itself, and again not a normally selected panel. According to the order, issued August 27, oral argument was to be held on October 

23, fifty-seven days away. Forty-nine of those fifty-seven days passed, with no action 

being taken to circulate the still pending petition for hearing en banc, even though 

all briefing certainly had been completed. Suddenly, with the panel hearing just 

eight days away, a decision was made finally to circulate the pending petition to 

the nine active judges of our court. The petition was circulated without any explanation for the delay, and without even any notation that a delay had occurred. In 

addition, the statement accompanying the circulation neither recommended an en 

banc hearing nor indicated why the issue was raised, at that time, as opposed to 

a time more proximate to the filing of the petition, though it did state that the full 

court was being advised because ‘‘a question . . . has been raised regarding the 

composition of the panel.’’ In any event, sufficient members of the active court voted 

to have the case heard en banc, and an order was issued on October 19, 2001, canceling the panel hearing scheduled to occur in only four days and instituting an en 

banc hearing before the now-reduced court. 

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Judge Moore’s concurrence makes several remarkable points. She first notes that 

the irregular constitution of the panel can be excused because ‘‘Chief Judge Martin 

has frequently substituted himself in a variety of matters, of varying degrees of importance, throughout his tenure as chief judge, in order to avoid inconveniencing 

other circuit judges.’’ Concurring Op. at 26 (Moore). But, of course, the very point 

is that such a practice, to the extent it exists, was unknown to the other members 

of the court, who had every reason to believe that the panel had been regularly constituted. There was no reason to know of the unusual handling of the motions in 

2000. There was no reason to know that there was any relation between the constitution of the ‘‘must panel’’ in 2001 and the activities in 2000. And there was no 

reason to know that anything was going on that was not in strict conformity with 

6th Cir. I.O.P. 34(b)(2). Thus, there was no reason to take any unusual action in 

response, whether before or after ‘‘April 5, 2001.’’ Concurring Op. at 27. 

Judge Moore also contends that the Chief Judge regularly fills ‘‘vacancies in other 

cases,’’ that no one has previously objected to his practice, and that his practice has 

become ‘‘a matter of common knowledge among the judges of this court.’’ Concurring 

Op. at 26. I absolutely deny that this judge has had any ‘‘knowledge’’ of, or that 

the Chief Judge has announced or admitted to, any such practice of inserting himself onto panels without a random draw. 

The notion that other members of the court were in some way derelict in not sua 

sponte calling for an initial hearing en banc as soon as the appeal was filed is both 

remarkable and misses the point. Concurring Op. at 25–26, 27. There would be no 

particular reason for an initial hearing en banc unless there were some extraordinary circumstance, as the document Judge Moore has quoted obliquely indicates. 

Concurring Op. at 24–25. 

I have been on the court for 16 years, and I do not recall an initial hearing en 

banc in my tenure. The concatenation of the irregular panel, the withholding, by 

whatever mechanism, of the motion addressed to the court, and the later granting 

of that motion in haste, are matters for which the other members of the court are 

certainly not responsible. 

Judge Moore suggests that my objections to the composition of the three-judge 

panel are ‘‘minor’’ because the decisions regarding the composition did not ‘‘actually 

change[] the outcome of the present case.’’ Concurring Op. at 24 n.5 (Moore). But 

as I have always made clear, it is difficult to know what body would have decided 

this case if the rules had been correctly implemented. Further, to the extent that 

the Judge Moore claims that the irregularities in the hearing panel’s composition 

were the only reason for granting the en banc petition, those irregularities existed 

at the time the petition was filed, and thus it is difficult also to argue that they 

did not affect the composition of the panel that ultimately decided this case. Most 

importantly, however, the rights of litigants and the members of this court to scrupulous compliance with the rules are not dependent on the likely—or even certain—

substantive outcomes of particular matters before the court. 

Contrary to Judge Moore’s concurring opinion, I do not contend that the legal 

opinions of any member of this court do not represent that judge’s principled judgment in this case. Concurring Op. at 21–22 (Moore). However, under these circumstances, it is impossible to say what the result would have been had this case 

been handled in accordance with our long-established rules. The case might have 

been heard before a different panel, or before a different en banc court.

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1Six of the judges confirmed to the circuit courts were elevated from district court seats. Their 

confirmation did not reduce the overall number of vacancies because six district court vacancies 

were created at the same time that six circuit court vacancies were filled. 

PREPARED STATEMENT OF NAN ARON, PRESIDENT, AND MARCIA KUNTZ,

LEGISLATIVE DIRECTOR, ALLIANCE FOR JUSTICE

The old adage that justice delayed is justice denied is as true now as ever. What 

is not true, however, is that the Senate is moving at less than full speed in confirming the president’s nominees to the federal bench. In fact, the Senate has confirmed 80 nominees during a period when it has had to focus on the war on terrorism, faced a shutdown under the threat of anthrax, and continues to grapple with 

some of the most important international issues of our time. 

Those nominees whose records do not evince a clear hostility to the needs of ordinary Americans and to Congress’ role in legislating critical rights and protections 

have received hearings and votes quickly. Since the Democrats took control of the 

Senate in the summer of 2001, the Judiciary Committee has held hearings on more 

than one hundred nominees. The Senate has confirmed 14 nominees to lifetime 

seats on the federal courts of appeals and 66 to the federal district courts. 

By contrast, during the previous 61⁄2 years of Republican control, the Senate confirmed an average of only 39 judicial nominees per year, including seven circuit 

court nominees. In the past 15 months, the Judiciary Committee has voted on more 

judicial nominees—100—including more circuit court nominees—17—than in any 

comparable period of Republican control. 

Contrary to claims by some, the number of judicial vacancies has decreased significantly during the Democrats’ control of the Senate. When Senator Patrick Leahy 

became chair of the Judiciary Committee, there were 110 vacancies in the federal 

judiciary. Notwithstanding the 41 additional vacancies arising since the July 2001 

reorganization, the Senate has reduced the overall number of vacancies to 77.1 The 

President has yet to nominate anyone for 29 of those vacancies. 

The alarms sounded by some over the current ‘‘vacancy crisis’’ ring hollow. In July 

of 2000, then-Chairman Orrin Hatch said, ‘‘The claim that there is a vacancy crisis 

in the federal courts is simply wrong.’’ Senator Hatch said that with 60 vacancies, 

‘‘the federal judiciary currently is at virtual full employment.’’ If that was true then, 

it surely cannot be the case that 17 more vacancies in an 852-seat federal judiciary 

would convert its status to one of ‘‘crisis,’’ especially since Congress added several 

new seats to the federal judiciary after Senator Hatch made his statements. 

Similarly, in 2000, Senators Helms and Thurmond opposed the confirmation of 

Roger Gregory to the U.S. Court of Appeals for the 4th Circuit. Even though five 

of the court’s 15 seats were vacant, Senators Helms and Thurmond pointed to statements made by Chief Judge J. Harvie Wilkinson that the court had a sufficient 

number of judges. Yet, upon the inauguration of President Bush, both senators successfully pushed for 4th Circuit nominations for their own former staffers (for whom 

they had already secured district court appointments under President George H.W. 

Bush)—S.C. District Court Judge Dennis W. Shedd and N.C. District Court Judge 

Terrence W. Boyle. 

Senators Thurmond and Helms in the 4th Circuit were by no means unique in 

their obstruction of highly capable, centrist candidates nominated by President Clinton. During the last six years of the Clinton administration, many of the president’s 

moderate, consensus nominees met with resistance on the part of those who sought 

to reserve these judicial seats for a Republican president. 

Now this Administration has pledged to make ideology the centerpiece of its judicial selection process, particularly with regard to circuit court nominees. Far too 

many of its nominees have records suggesting a hostility to progress made in the 

areas of civil rights, reproductive freedom, consumer and worker protections, and 

the environment. 

For example, Judge Shedd routinely dismisses on summary judgment claims of 

race and gender discrimination, often in the face of contrary magistrate recommendations. Texas Supreme Court Justice Priscilla Owen, whose nomination to 

the 5th Circuit was recently rejected by the Senate Judiciary Committee, consistently rules in favor of big business, including campaign contributors, and against 

consumers and workers. Professor Michael McConnell, nominated to the 10th Circuit, argued in a law review article that the Supreme Court was wrong to uphold 

a denial of tax-exempt status to Bob Jones University, which discriminated on the 

basis of race. Judge Boyle was reversed by a unanimous Supreme Court for striking 

down a congressional redistricting plan designed to ensure full voting rights for African-Americans. 

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While delays resulting from an overburdened judiciary are cause for real concern, 

of even greater concern are nominees with little respect for the historic and noble 

role of the federal judiciary as guarantor of equal access to justice for all. Many of 

the Administration’s nominees appear to be in the mold of some of the most conservative members of the federal judiciary, who assiduously search for legal justifications to close the courtroom doors to those seeking redress for civil rights violations, 

unfair employment practices, unsafe consumer products, and the contamination of 

our air and water. Several senators who were apparently unconcerned about the 

number of vacancies during the Clinton years now essentially call on the Senate to 

rubberstamp President Bush’s nominees to address a purported crisis perpetuated 

by their own obstructionism. 

Last year, hundreds of law professors signed onto a letter that stressed the Senate’s constitutional role in independently evaluating nominees and recommended 

standards the Senate should use in those evaluations. Asserting that ‘‘no nominee 

is presumptively entitled to confirmation,’’ the law professors took the position that 

the burden of proof rightfully lies with the nominee. They urged senators to confirm 

only those nominees who:

• have an exemplary record in the law;

• bring an open mind to decision-making, with an understanding of the realworld consequences of their decisions;

• demonstrate a commitment to protecting the rights of ordinary Americans 

and do not place the interests of the powerful over those of individual citizens;

• have fulfilled their professional obligation to work on behalf of the disadvantaged;

• have a record of commitment to the progress made on civil rights, women’s 

rights and individual liberties; and

• manifest a respect for the constitutional role Congress plays in promoting 

these rights and health and safety protections, and ensuring recourse when 

these rights are breached.

These are sound standards for the Senate to follow. In Congress’s efforts to address the ‘‘vacancy crisis’’ in the federal judiciary, it must not lose sight of the need 

to fill those vacancies with judges who recognize that they serve all Americans, including the most vulnerable who have little voice in the political process. The Alliance for Justice has long promoted the importance of an adequately staffed judiciary. There is no question that an excessive number of vacancies and an overburdened judiciary impede the fair dispensation of justice. However, filling vacancies 

by appointing judges who lack a commitment to fairness and equality for all is no 

solution. Indeed, it would exacerbate the denial of justice.

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1The Congress created ten additional judgeships at that time, but one of the judgeships was 

not included in the Conference recommendations. 

PREPARED STATEMENT OF JUDGE DENNIS JACOBS

Mr. Chairman and members of the Subcommittee, I am Dennis Jacobs, Circuit 

Judge for the Second Circuit Court of Appeals and Chair of the Judicial Conference 

Committee on Judicial Resources. That Committee is responsible for all issues of 

human resource administration, including the need for Article III judges and support staff, in the U.S. courts of appeals and district courts. I am here today to provide information about the judgeship needs of the courts and the process by which 

the Judicial Conference of the United States (Conference) determines those needs. 

Every other year, the Conference conducts a survey of judgeship needs of all U.S. 

courts of appeals and U.S. district courts. The last survey was completed in July 

2000, and immediately thereafter the Conference recommended that Congress establish 63 new judgeships in the courts of appeals and district courts. On December 

21, 2000, through the annual appropriation process, the Congress created nine 1 of 

the district judgeships included in those recommendations. In recognition of that action, on February 5, 2001, Mr. Leonidas Ralph Mecham, Director of the Administrative Office of the U.S. Courts, transmitted to the President of the Senate and the 

Chairman of the Senate Judiciary Committee a draft bill containing recommendations to create 54 additional judgeships, 

10 (6 permanent and 4 temporary) for the U.S. courts of appeals, and 44 (23 permanent and 21 temporary) for the U.S. district courts. The Conference also recommended that 7 temporary district court judgeships created in 1990 be established 

as permanent positions and 1 temporary judgeship be extended for an additional 5 

years. Appendix 1 contains the specific numbers recommended for each court. At the 

direction of the Conference, Mr Mecham again transmitted this same draft bill on 

May 28, 2002. 

For many of the courts, the recommendations represent needs developed since 

1990, the most recent year in which a comprehensive judgeship bill was enacted. 

Since that time, the Conference has submitted recommendations to Congress every 

other year on the numbers of additional Article III judgeships required in the judicial system. 

SURVEY PROCESS

In developing recommendations for consideration by Congress, the Conference, 

through its committee structure, uses a formal process to review and evaluate Article III judgeship needs. The Committee on Judicial Resources and its Subcommittee 

on Judicial Statistics manage these reviews, with final recommendations on judgeship needs approved by the Conference. This process involves the following six levels 

of review within the judiciary before a recommendation is transmitted to Congress: 

1) the judges of the court making a request; 2) the Subcommittee on Judicial Statistics; 3) the judicial council of the circuit in which the court is located; 4) a second 

and final review by the Subcommittee; 5) the Committee on Judicial Resources; and 

6) the Conference. During the last survey, the courts requested 78 additional judgeships (both permanent and temporary), but through this review process that number 

was eventually reduced to the 63 initially recommended by the Conference in July 

2000. 

During each judgeship survey, the Conference reconsiders all recommendations 

made from the prior survey, taking into account recent changes in workload, availability of resources, and adjustments to guidelines for evaluating requests. In some 

instances this review results in adjustments to previous recommendations for individual courts. As a result of this reconsideration process, the current Conference request for additional judgeships excludes eight judgeships recommended in 1999. For 

some of those, the courts withdrew their request, and for others the caseload no 

longer supported the need for additional resources. 

JUDICIAL CONFERENCE STANDARDS

The recommendations developed through the review process noted above are 

based in large part on standards related to the caseload of the judges. These standards, provided at Appendix 2, are not optimum caseload levels, but instead represent the caseload at which the Conference may begin to consider requests for additional judgeships. So, the standards represent a starting point in the process rather than an ending point. 

As important as the caseload statistics may be in evaluating a court’s need for 

additional judgeships, the data must be considered with other court-specific inforVerDate Jan 17 2002 15:35 Nov 21, 2002 Jkt 000000 PO 00000 Frm 00107 Fmt 6601 Sfmt 6621 G:\WORK\CONST\101002\82264.000 HJUD1 PsN: 82264
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2The Judiciary’s appropriations bills for fiscal year 2000 and 2001, included nine and ten additional district court judgeships, respectively.

mation to provide an accurate indication of the judgeship needs of each court. The 

statistics alone do not reveal unique situations in a court that may result in an 

overstatement or understatement of the actual workload burdens. For that reason 

the Conference process takes into account additional factors that may impact the 

judgeship needs of each court, including senior judge and magistrate judge assistance, geographical factors, unusual caseload complexity, temporary caseload increases or decreases, and any other factors noted by individual courts as having an 

impact on resource needs. 

In the district courts, for example, the standard used by the Conference as its 

starting point is 430 weighted filings per judgeship. During the last judgeship survey, however, the Conference made no recommendation for additional judgeships in 

any court where the weighted filings per judgeship were below 472. And, only four 

of the courts where the Conference recommended additional judgeships had weighted filings below 500 per judgeship. These caseload levels in courts where the Conference has recommended additional judgeships are substantially above the standard and reflect factors other than just caseload in a complete evaluation of the 

court’s situation. So, although the process of evaluating judgeship needs is driven 

in large part by the workload as shown in caseload statistics, there is, of necessity, 

some degree of subjectivity involved in developing the judgeship recommendations. 

BACKGROUND-CASELOAD INFORMATION

The last comprehensive judgeship bill for the U.S. courts of appeals and district 

courts was in 1990 2. Public Law 101–650 established 11 additional judgeships for 

the courts of appeals and 74 additional judgeships for the district courts. Since that 

time, the caseloads in both the courts of appeals and the district courts continued 

to increase. By 

June 2002, filings in the courts of appeals (Chart 1) had grown by 32 percent 

while district court (Chart 2) case filings rose 37 percent (civil cases were up 27 percent while criminal felony filings almost doubled, up 96 percent). Although the Congress created 19 additional judgeships in the district courts in recent years in response to serious problems in certain districts, no additional judgeships have been 

created for the courts of appeals. As a result, the national average caseload per 

three-judge panel has reached 1,023, the highest level ever. In the district courts, 

even with the 19 additional judgeships, the number of weighted filings per judgeship, the primary measure of workload which takes into account some measure of 

complexity, were 504 as of June 2002—still well above the Judicial Conference 

standard for considering recommendations for additional judgeships. I have provided 


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at Appendix 3 a more detailed description of the most significant changes in the 

caseload since 1991.

One important factor relating to the workload of the district courts, that is not 

obvious from the caseload data, is the change in the nature of the criminal business 

that has occurred since the early 1990’s. Since 1991, the conviction rate for criminal 

defendants has grown from 82 percent of all defendants to 90 percent in 2002. 

Therefore, even without an increase in the caseload, there has been an increase in 

workload associated with the number of defendants requiring sentencing. This 

workload is further complicated by the Sentencing Guidelines, which require more 

of a judge’s time than discretionary sentencing did in the past. 

Another factor that increases the criminal workload relates to the number of defendants receiving terms of supervised release following a prison term. When Congress authorized the supervised release sentence in the Sentencing Reform Act of 

1984, it created new work for district judges and magistrate judges that involves 

a class of defendants who previously were the responsibility of the United States 

Parole Commission. The responsibility for monitoring these defendants and reviewing potential violations of the terms of their supervision now rests with the district 

court. A large majority of defendants under supervision of the Federal Probation 

System are now serving terms of supervised release, so judges must now conduct 

hearings whenever these defendants violate the terms of their supervision. Only recently has the workload associated with the supervised release caseload been reflected in the weighted filings information used to support the need for additional 

judgeships. So, the recommendations included in the legislation understate this additional workload burden of the district courts. 

Although the national figures provide a general indication of system-wide 

changes, the situation in courts where the Conference has recommended additional 

judgeships is much more dramatic. For example, there are now twelve district 

courts with caseloads in excess of 600 per judgeship and two where the caseload exceeds 800 per judgeship. For the entire group of district courts where the Conference is recommending additional judgeships, the weighted filings per judgeship 

have grown from 453 in 1991 to 625 in June 2002 (taking into account the 19 new 

judgeships created in 1999 and 2000), an increase of 38 percent (Chart 3).


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The national data and the combined data for courts requesting additional judgeships 

provide general information about the changing volume of business in the courts. 

This information does not, however, provide the basis for the additional judgeships 

recommended by the Conference. Since judgeships are authorized by specific court 

rather than nationally, the workload data most relevant to the judgeship recommendations are those that relate to the specific courts where the Conference has 

made recommendations. 

The attached Table 1 contains summary information about the numbers of additional judgeships recommended by the Conference for each court. The Legislative Affairs staff of the Administrative Office of the U.S. Courts has previously provided 

to each member of the Judiciary Committee the detailed justifications for the additional judgeships in each court. This material is too voluminous to attach as an appendix to this statement. 

Over the last 20 years, the Judicial Conference has developed, adjusted, and refined the process for evaluating and recommending judgeship needs in response to 

both judiciary and congressional concerns. The Conference does not desire nor recommend indefinite growth in the number of judges. The concern about continuing 

growth is expressed in the Long Range Plan for the Federal Courts at Recommendation 15, which acknowledges that growth in the judiciary must be carefully controlled so that creation of new judgeships is limited to that number necessary to exercise federal court jurisdiction. However, as long as federal court jurisdiction expands rather than contracts, there needs to be a sufficient number of judges to properly serve litigants. The Conference is constantly attempting to balance the need to 

control growth and the need to seek resources that are appropriate to the workload. 

In an effort to place that policy in effect, we have requested far fewer judgeships 

than the caseload increases would suggest are now required. 

On behalf of the Judicial Conference, I request that this Subcommittee give full 

consideration to the draft bill submitted by the Judicial Conference to establish 10 

additional judgeships for the U.S. courts of appeals and 44 additional judgeships for 

the U.S. district courts.


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APPENDIX 1

APPENDIX 2

Judicial Conference Process for Courts of Appeals 

At its September 1996 meeting, on the recommendation of the Judicial Resources 

Committee, which consulted with the chief circuit judges, the Judicial Conference 

unanimously approved a new judgeship survey process for the courts of appeals. Because of the unique nature of each of the courts of appeals, the Conference process 

involves consideration of local circumstances that may have an impact on judgeship 

needs. In developing recommendations for courts of appeals, the Conference takes 

the following general approach:


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3 ‘‘Weighted filings’’ is a mathematical adjustment of filings, based on the nature of cases and 

the expected amount of judge time required for disposition. For example, in the weighted filings 

system for district courts, each student loan civil case is counted as only 0.031 cases while each 

cocaine distribution defendant is counted as 2.27 weighted cases. The weighting factors were developed on the basis of time studies conducted by the Federal Judicial Center on cases filed between 1987 and 1991.

A. Courts are asked to submit requests for additional judgeships provided that 

at least a majority of the active members of the court have approved submission of the request; no recommendations for additional judgeships are made 

without a request from a majority of the members of the court.

B. Each court requesting additional judgeships is asked to provide a complete 

justification for the request, including the potential impact on its own court 

and the district courts within the circuit of not getting the additional judgeships. In any instance in which a court’s request cannot be supported 

through the standards noted below, the court is requested to provide supporting justification as to why the standard should not apply to its request.

C. The Conference considers various factors in evaluating judgeship requests, 

including a statistical guide based on a standard of 500 filings (with removal 

of reinstated cases) per panel and with pro se appeals weighted as one third 

of a case. This caseload level is used only as a guideline and not used to determine the number of additional judgeships to recommend. The Conference 

does not attempt to bring each court in line with this standard.

The process allows for discretion to consider any special circumstances applicable 

to specific courts and recognizes that court culture and court opinion are important 

ingredients in any process of evaluation. The opinion of a court as to the appropriate 

number of judgeships, especially the maximum number, plays a vital role in the 

evaluation process, and there is recognition of the need for flexibility to organize 

work in a manner which best suits the culture of the court and satisfies the needs 

of the region served. 

Judicial Conference Process for District Court Reviews 

In an ongoing effort to control growth, in 1993, the Conference adopted new, more 

conservative criteria to evaluate requests for additional district judgeships, including an increase in the benchmark caseload standard from 400 to 430 weighted cases 

per judgeship. Although numerous factors are considered in looking at requests for 

additional judgeships, the primary factor for evaluating the need for additional district judgeships is the level of weighted filings. Specifically, the Conference uses a 

case weighting system 3 designed to measure judicial workload, along with a variety 

of other factors, to assess judgeship needs. The Conference reviews all available 

data on the caseload of the courts and supporting material provided by the individual courts and judicial councils of the circuits, and takes the following approach 

in developing recommendations for additional district judgeships: 

A. A level of weighted filings in excess of 430 per judgeship is used as a starting point for considering requests; this caseload level is used only as a guideline and not used to determine the number of additional judgeships to recommend. The Conference does not attempt to bring each court in line with 

this standard.

B. The caseload of the individual courts is reviewed to determine if there are 

any factors present to create a temporary situation that would not provide 

justification for additional judgeships. Other factors are also considered that 

would make a court’s situation unique and provide support either for or 

against a recommendation for additional judgeships.

C. The Conference reviews the requesting court’s strategies for handling judicial workload, including a careful review of each court’s use of senior judges, 

magistrate judges, and alternative dispute resolution, in addition to a review 

of each court’s use of and willingness to use visiting judges. These factors 

are used in conjunction with the caseload information to decide if additional 

judgeships are appropriate, and to arrive at the number of additional judgeships to recommend for each court.

D. The Conference recommends temporary judgeships in all situations where 

the caseload level justifying additional judgeships occurred only in the most 

recent years, or when the addition of a judgeship would place a court’s caseload close to the guideline of 430 weighted filings per judgeship. The Conference sometimes relaxes this approach in the case of a small court, where 

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tially below the 430 level. In some instances the Conference also considers 

the pending caseload per judgeship as a factor supporting an additional temporary judgeship. 

Actions to Maximize Use of Judgeships 

In addition to the conservative and systematic processes described in pages 1–3 

for evaluating judgeship needs, given the current climate of fiscal constraint, the judiciary is continually looking for ways to work more efficiently without additional 

resources. As a part of the normal judgeship survey process or as a separate initiative, the judiciary has used a variety of approaches to maximize the use of resources 

and to ensure that resources are distributed in a manner consistent with workload. 

These efforts have allowed us to request fewer additional judgeships than the increases in caseload would suggest are required. Among the more significant methods 

in use are:

(1) Surveys to review requests for additional permanent and temporary judgeships and extensions or conversions of temporary judgeships to permanent:

As described previously, surveys are conducted biennially of all Article III 

judgeships needs. To reduce the number of additional judgeships requested 

from Congress, the Judicial Conference has adopted more conservative criteria for determining when to recommend creation of additional judgeships 

in the courts of appeals and district courts.

(2) Recommending temporary rather than permanent judgeships: Temporary, 

rather than permanent, judgeships are recommended in those instances 

where the need for additional judgeships is demonstrated, but it is not clear 

that the need will exist permanently.

(3) Development of a process to recommend not filling vacancies: In March 1997, 

the Judicial Conference approved a process for reviewing situations where 

it may be appropriate to recommend elimination of a district judgeship or 

that a vacancy not be filled. The Judicial Conference includes this process 

in its biennial surveys of judgeship needs for recommending to the Executive and Legislative Branches that specific vacancies be eliminated or not 

be filled. A similar process has been developed and is in use for the courts 

of appeals.

(4) Use of senior judges: Judicial officer resource needs are also met through the 

use of Article III judges who retire from active service to senior status. Most 

senior Article III judges perform substantial judicial duties; over 375 senior 

judges are serving nationwide.

(5) Shared judgeships: Judgeship positions have been shared to meet the resource needs of more than one district without the cost of an additional 

judgeship.

(6) Intercircuit and intracircuit assignment of judges: To furnish short-term solutions to disparate judicial resource needs of districts within and between 

circuits, the judiciary uses intercircuit and intracircuit assignments of Article III judges. This program has the potential to provide short-term relief 

to understaffed courts.

(7) Use of magistrate judges: Magistrate judges serve as adjuncts to the district 

courts, supplementing the work of the Article III judges. Use of magistrate 

judges on many routine court matters and proceedings allows for more effective use of Article III judges on specialized court matters.

(8) Use of alternative dispute resolution: Since the late 1970s and with increasing frequency, courts use various alternative dispute resolution programs 

such as arbitration, mediation, and early neutral evaluation as a means of 

settling civil disputes without litigation.

(9) Use of technology: The judiciary continually explores ways to help align 

caseloads through technological advancements, where judges can assist 

other districts or circuits without the need to travel. 

APPENDIX 3

Caseload Changes Since Last Judgeship Bill 

With the creation of 19 additional district court judgeships, the total number of 

authorized district court judgeships has increased 2 percent since 1991; court of appeals judgeships have not increased. Since the last comprehensive judgeship bill 

was enacted for the U.S. courts of appeals and district courts, the numbers of cases 

filed in those courts have grown by 27 percent and 25 percent, respectively. Specific 

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categories of cases have seen dramatic changes over the last ten years, some increasing and some decreasing significantly. Following is a summary of the most significant changes.

U.S. COURTS OF APPEALS (Change in authorized judgeships: 0)

• The total number of appeals filed has grown by more than 11,000 cases since 

1991.

• Appeals of decisions in civil cases from the district courts have increased 

nearly 28 percent.

• The most dramatic growth in civil appeals has been in prisoner appeals where 

case filings are up 58 percent since 1991; this growth has occurred in matters 

involving both state and federal prisoners.

• Appeals of criminal cases have remained fairly stable over the last ten years, 

increasing only 4 percent.

• The number of appeals involving administrative agency decisions has fluctuated over the last several years, but is now 13 percent higher than in 1991.

U.S. DISTRICT COURTS (Change in authorized judgeships: +2%) 

Civil Caseload 

• Total civil filings rose almost 29 percent from 1991 to 1997 and have fluctuated since then. Even with the recent fluctuation, civil filings were 23 percent higher in 2000 than in 1991.

• The increase in civil filings resulted primarily from cases related to recovery 

of defaulted student loans (284.7%), civil rights (105.7%), social security 

(86.4%), copyright, patent and trademark (68.5%), and prisoner petitions 

(37.7%).

• Significant increases in mass tort filings of asbestos and breast implant cases 

contributed to the overall increase in total filings through 1997. Since then 

these filings have decreased to nearly 1991 levels.

Some of the increases resulted, in part, from legislative actions:

• civil rights filings increased steadily after the Civil Rights Act of 1990 was 

enacted. Filings rose from 19,892 in 1991 to 43,278 in 1997, and have since 

decreased slightly.

• prisoner petitions overall were up 38 percent from 1991 to 2000. Habeas 

corpus petitions more than doubled, increasing from 12, 019 to 25,219. Prison civil rights cases (including prison condition cases) increased through 

most of the years, but fell substantially after prison litigation reform in 

1996. Prison civil rights filings are now at approximately the same level as 

in 1991.

• Filings related to social security fluctuated considerably over the last eight 

years, but in 2000 were 86 percent higher than in 1991.

• Most of the significant decreases in filings from 1991 to 2000 occurred in case 

categories that have a relatively small number of cases. A few exceptions are 

property foreclosures which fell almost 3,400, forfeiture and penalty—down 

3,200 filings, and bankruptcy appeals—down 1,550 filings.

• A slight decrease in filings from 1999 to 2000 occurred primarily because of 

reductions in personal injury product liability filings. 

Criminal Caseload 

• Since 1991, the number of criminal felony case filings increased 96 percent. 

After fluctuating between 1991 and 1994, criminal filings have steadily increased in the last eight years. Just since 1994, criminal felony case filings 

have more than doubled, up 111 percent.

• The largest increase by far has been in immigration filings which rose from 

2,182 in 1991 to 12,150 in 2000.

• Drug-related filings increased almost 50 percent and defendants charged with 

drug offenses rose 32 percent.

• Although filings related to fraud fluctuated over the years, they have increased 12 percent from 6,948 to 7,788.

• Most of the significant decreases in filings occurred in offense categories that 

have a relatively small number of cases. The one exception is traffic offenses; 

the number of cases there has fallen 32 percent since 1991. These offenses, 

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however, are not a factor in the district court requests for additional judgeships.

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