In my new Confirmation Tales post, I wrap up my discussion of Bill Clinton’s first two years of lower-court nominations—which I worked on as a Judiciary Committee lawyer for Senator Orrin Hatch—with a look at what Senate deference meant back then and how that compares with the process now. An excerpt:
On January 1, 1993—on the cusp of Clinton’s inauguration—there were 17 vacancies in federal appellate seats and 90 vacancies in federal district seats (as well as one “future vacancy”—a declared intention to vacate a seat in the future—in each category). In 1993 and 1994, the Senate confirmed 19 appellate judges and 107 district judges.
All of the nominees except Barkett and Sarokin—124 in total—were confirmed by so-called voice vote. As the Senate website explains:
In a voice vote the presiding officer states the question, then asks those in favor to say “yea” in unison and those against to say “nay.” The presiding officer announces the results according to his or her best judgment. In a voice vote, the names of the senators and the tally of votes are not recorded.
Voice votes on nominations occur only when every senator has waived the right to a roll-call vote. So every Republican senator, even the most conservative, allowed all of those nominations to proceed to confirmation without a recorded roll-call vote. Every Republican senator likewise waived the right to a preceding vote on cloture as well as to the 30 hours of post-cloture debate that the Senate rules formally allowed.
I hasten to add that I am not arguing that the process was better back then. I am merely highlighting how different it was. On balance, I much prefer today’s process (though I wish that we now had a Republican president submitting nominations to a Republican-controlled Senate).
Many folks seem to have as their ideal a process in which their side’s nominees receive deference and the other side’s nominees receive searing scrutiny. But even as the rules and practices continue to evolve, the same rules and practices are going to end up applying to both sides.
Future Confirmation Tales posts will explore how and why the process has changed. Please subscribe (for free, as you please).