In late September, Senate Democrats invoked an obscure parliamentary maneuver to shut down all Senate committee hearings. The Judiciary Committee, which was about to hear from entertainment-industry executives about the marketing of violent music and video games to children, was forced to adjourn before any questions were asked.
The reason for the Democrats’ obstruction? Orrin Hatch, chairman of the committee, had decided not to move forward with the confirmation of any more judicial nominees. The committee has not approved any Clinton nominees since July. In retaliation, Tom Daschle, the leader of the Senate Democrats, has gone so far as to block votes on four nominees who have passed through the committee.
Senator Hatch’s decision is hardly surprising. He rightly believes that this close to an election, the Senate should not confirm individuals to life-tenured judgeships. The new President should have a say in these nominations.
The Democrats’ tactics likewise are unsurprising. For the past few years, Democrats have threatened shut-downs, claimed the existence of a so-called “judicial crisis” and complained of race and sex bias in order to push through Clinton’s judicial nominees. Though these allegations are false, repeating them has won Democrats some victories. This time, it looks like the Republicans will hold firm.
So they should. There is and has been no judicial crisis. We can use the Clinton administration’s own standards to prove the point. In late 1994, when Democrats controlled the Senate, the administration issued a press release entitled “Record Number of Federal Judges Confirmed.” The administration noted that it had “reduced the judicial vacancy rate . . . to 6.3% (53 vacancies) . . . . This is equivalent to ‘full employment’ in the 837-member federal judiciary.” Actually, the administration had the numbers slightly wrong: The actual vacancy rate at the time was 63 or 7.4%. The administration could look at a federal bench with that vacancy rate and see an achievement, not a crisis.
Today, there are 64 vacancies — one more than in 1994. But now that there’s a Republican Senate, suddenly there’s a “crisis.”
The Senate, in fact, has confirmed President Clinton’s nominees at almost the same rate as it confirmed those of Presidents Reagan and Bush. President Reagan appointed 382 federal judges. Thus far, the Senate has confirmed 373 of President Clinton’s nominees, and stands ready, if Democrats allow a vote, to confirm four more. Because the federal judiciary has expanded, Clinton has been able to appoint a smaller proportion of judges than Reagan was — 44 percent vs. 50 percent. This differential hardly demonstrates that there has been, as President Clinton recently said, an “unconscionable slowdown.”
Nor have confirmations been markedly slower this year than in previous election years during times of divided government. In 1988, the Democrat-controlled Senate confirmed 41 Reagan nominees. Assuming (as is likely) that the four nominees currently pending are confirmed, the Republican Senate this year will have confirmed 39 of President Clinton’s nominees — a nearly identical number.
The 1992 figures require a bit more analysis. The Democratic Senate did confirm 64 Bush nominees that year, but this high number was due to the fact that Congress had recently created 85 new judgeships. But there’s been no slowdown in percentage terms either. The Democratic Senate confirmed 45 percent of 1992’s nominees. The Republican Senate will likely confirm 57 percent of the judges Clinton nominated this year. Another point of comparison: When Bush left office, the Democrats had left 115 judgeships vacant — nearly double today’s number.
Senate Democrats often cite a 1997 speech by Chief Justice William Rehnquist as evidence of a Republican slowdown. Referring to the 82 vacancies then existing, the Chief Justice said: “Vacancies cannot remain at such high levels indefinitely without eroding the quality of justice that traditionally has been associated with the federal Judiciary.” But Rehnquist had said the same thing in 1993: “There is perhaps no issue more important to the judiciary right now than this serious judicial vacancy problem.” As the head of the judicial branch, the Chief Justice has maintained pressure on the President and Senate to speedily confirm judges. That’s part of his job. But he hasn’t singled out the Republican Senate as slowpokes, as the Democrats imply.
Other comments by Rehnquist in that speech also belie claims of a “judicial crisis.” After calling attention to the existing vacancies, he wrote: “Fortunately for the Judiciary, a dependable corps of senior judges has contributed significantly to easing the impact of unfilled judgeships.” Not all “vacancies,” in other words, are truly vacant. There are 363 senior judges presently serving in the federal judiciary. Although their seats are technically counted as vacant, they continue to hear cases at reduced workload. Assuming that they maintain a 25 percent workload (the minimum required by law), the true number of vacancies is less than zero.
Allegations of race or sex bias in the confirmation process are also mere spin. In September, President Clinton issued a statement alleging bias in the Senate: “The quality of justice suffers when highly qualified women and minority candidates are denied an opportunity to serve in the judiciary.” The White House, though, also issued a statement boasting of the high number of women and minority that Clinton has appointments to federal courts: “The President’s record of appointing women and minority judges is unmatched by any President in history. Almost half of President Clinton’s judicial appointees have been women or minorities.” The Senate, obviously, confirmed this record number of women and minorities.
Democratic Senator Joseph Biden agrees that these charges are false. Last November, he said, “There has been argumentation occasionally made . . . that [the Judiciary] Committee . . . has been reluctant to move on certain people based upon gender or ethnicity or race. . . . [T]here is absolutely no distinction made [on these grounds] . . . . [W]hether or not [a nominee moves] has not a single thing to do with gender or race. . . . I realize I will get political heat for saying that, but it happens to be true.”
The statistics confirm Senator Biden’s position. There have been only minor differences in the time it takes for men and women to be confirmed. During President Bush’s final years in office (1991-92), the median time it took for a Democratic Senate to confirm female nominees was 126 days; the comparable figure for men was 110 days. This differential decreased to only 4 days when Republicans gained control of the Senate in 1994 (91 days vs. 87 days). During the subsequent 105th and 106th Congresses, it increased again. Today the difference is 32 days.
The data concerning minority nominees likewise shows no clear trend. When Republicans gained control in 1994, it took 28 days longer to confirm minority nominees than non-minority nominees (again, we’re using medians). This difference has decreased. The present Congress is taking only 11 days longer to confirm minority nominees.
These minor differences are a matter of happenstance. They show no clear trend. And even if there were actual differences, a differential of a week or two is insignificant compared to the average time that it takes to select (the Clinton White House spends an average of 315 days to select ) and confirm (the Senate requires an average of 144 to confirm) a nominee.
Senator Hatch’s Judiciary Committee should and does consider President Clinton’s judicial nominees more carefully than the Democrats did in 1993 and 1994. Some individuals confirmed by the Senate then would probably not clear the committee today. The Senate’s power of advice and consent, after all, is not a rubber stamp.
But there is no evidence of bias or of an “unconscionable slowdown.” Senate Democrats claim that Republicans have politicized the confirmation process. But it’s not Republicans who are levying false charges or playing petty parliamentary games. But maybe there’s an upside to Democratic complaints about a “crisis” caused by a “slowdown”: Perhaps Tom Daschle will lead the charge to confirm President George W. Bush’s nominees — speedily.
C. Boyden Gray, an attorney in Washington, D.C. who, from 1989 to 1993, served as Counsel to President Bush, & R. Alexander Acosta, a fellow in legal studies at the Ethics and Public Policy Center.