Denis Steven Rutkus

Supported by the custom of "senatorial courtesy," Senators of the President's party have long played, as a general rule, the primary role in selecting candidates for the President to nominate to federal district court judgeships in their states. They also have played an influential, if not primary, role in recommending candidates for federal circuit court judgeships associated with their states. For Senators who are not of the President's party, a consultative role, with the opportunity to convey to the President their views about candidates under consideration for judgeships in their states, also has been a long-standing practice -- and one supported by the "blue slip" procedure of the Senate Judiciary Committee. Senators, in general, exert less influence over the selection of circuit court nominees. Whereas home state Senators of the President's party often dictate whom the President nominates to district judgeships, their recommendations for circuit nominees, by contrast, typically compete with names suggested to the Administration by other sources or generated by the Administration on its own. Whether and how a state's two Senators share in the judicial selection role will depend, to a great extent, on their respective prerogatives and interests. Senators have great discretion as to the procedures they will use to identify and evaluate judicial candidates, ranging from informally conducting candidate searches on their own to relying on nominating commissions to evaluate candidates. Contact between a Senator's office and the Administration can be expected to clarify the nature of the Senator's recommending role, including the degree to which the Administration, in its judicial candidate search, will rely on the Senator's recommendations. If a President selects a district or circuit court nominee against the advice of, or without consulting, a home state Senator, the latter must decide whether to oppose the nomination (either first in the Senate Judiciary Committee or later on the Senate floor). From the Senator's standpoint, opposition to the nomination might serve a number of purposes, including helping to prevent confirmation or influencing the Administration to take consultation more seriously in the future. On the other hand, various considerations might influence the Senator not to oppose the nomination, including the desirability of filling the vacant judgeship as promptly as possible and, if more home state vacancies are possible in the future, whether these might provide the Senator a better opportunity for exerting influence over judicial appointments. In recent years, the role of home state Senators in recommending judicial candidates has given rise to various issues, including the following: What constitutes "good faith" or "serious" consultation by the Administration? Should home state Senators always have the opportunity to provide their opinion of a judicial candidate before he or she is nominated? How differently should the Administration treat the input of Senators, depending on their party affiliation? What prerogatives should home state Senators have in the selection of circuit court nominees? Should the policy of the Judiciary Committee allow a home state Senator to block committee consideration of a judicial nominee?

The appointment of a Supreme Court Justice is an infrequent event of major significance in American politics. Each appointment is important because of the enormous judicial power the Supreme Court exercises as the highest appellate court in the federal judiciary. Appointments are infrequent, as a vacancy on the nine member Court may occur only once or twice, or never at all, during a particular President's years in office. Under the Constitution, Justices on the Supreme Court receive lifetime appointments. Such job security in the government has been conferred solely on judges and, by constitutional design, helps insure the Court's independence from the President and Congress. The procedure for appointing a Justice is provided for by the Constitution in only a few words. The "Appointments Clause" (Article II, Section 2, clause 2) states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Spreme Court." The process of appointing Justices has undergone changes over two centuries, but its most basic feature -- the sharing of power between the President and Senate -- has remained unchanged: To receive lifetime appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate. Although not mentioned in the Constitution, an important role is played midway in the process (after the President selects, but before the Senate considers) by the Senate Judiciary Committee. On rare occasions, Presidents also have made Court appointments without the Senate's consent, when the Senate was in recess. Such "recess appointments," however, were temporary, with their terms expiring at the end of the Senate's next session. The last recess appointments to the Court, made in the 1950s, were controversial, because they bypassed the Senate and its "advice and consent" role. The appointment of a Justice might or might not proceed smoothly. Since the appointment of the first Justices in 1789, the Senate has confirmed 120 Supreme Court nominations out of 154 received. Of the 34 unsuccessful nominations, 11 were rejected in Senate roll-call votes, while nearly all of the rest, in the face of committee or Senate opposition to the nominee or the President, were withdrawn by the President or were postponed, tabled, or never voted on by the Senate. Over more than two centuries, a recurring theme in the Supreme Court appointment process has been the assumed need for excellence in a nominee. However, politics also has played an important role in Supreme Court appointments. The political nature of the appointment process becomes especially apparent when a President submits a nominee with controversial views, there are sharp partisan or ideological differences between the President and the Senate, or the outcome of important constitutional issues before the Court is seen to be at stake.

This book presents statistics regarding procedural actions taken on US district and circuit court nominations for the period January 4, 1977 through 2002. Among other things, the statistics for the 1977-2002 period show: Over the course of five successive presidencies, the senate confirmation percentage for circuit court nominations has declined. The great majority of each President's nominations have either been confirmed or returned. An average of seven nominations per President have been withdrawn. One nomination has been disapproved by a senate vote. The confirmation percentage for district and circuit court nominations combined was greater than 60% for every congressional session from 1977 through 1990, whereas the district and circuit combined confirmation rate has been less than 60% for eight of the last 12 congressional session. The average number of days elapsing between nominations date and final action has been higher for most Congresses in the post-1990 period than for prior Congresses. Starting with the 100th Congress (1987-1988), and in five of the seven Congresses since, an average of more than 100 days has elapsed between nomination dates and committee votes on either district or circuit court nominations, or on both. For almost every Congress in the post-1990 period, the percentages of district and circuit court nominations left pending at the end of the congress were higher than corresponding percentages for the pre-1990 Congresses. The Senate returned substantially more nominations during the 102nd, 106th, and 107th Congresses than during any other Congresses in the 1977-2002 period. The average number of days between nomination date and final action increased in Congresses ending in presidential election years. The vast majority of judicial nominations submitted during the 1977-2002 period received committee hearings and votes, as well as full Senate votes. However, during the 102nd, 106th, and 107th Congresses, there were reductions in the share of nominations receiving committee and Senate action.