It has long been evident that the process of confirming legions of appointees — which takes place even as countless legislative matters are considered — has overwhelmed the resources of Congress to expeditiously process them. Administrations find that many positions are unfilled even as Congress recesses for the summer — some 200 days into the tenure of a new administration. All this makes the FDR “100 days” standard for decisive action obsolete, a fact recognized when GOP Congressional leaders now call for a “200 days” benchmark for enacting major items on the Trump agenda.
Three weeks into the Trump presidency, only seven of his Cabinet nominees had been confirmed, with Vice President Pence’s vote needed to break a 50-50 tie and confirm Betsy DeVos as Secretary of Education, and a 52-47 vote confirming Jefferson Sessions as Attorney General. In 2009 11 of 15 of President Obama’s Cabinet nominees had been confirmed by the end of January, many with GOP support. Where Obama went full tilt, Trump’s agenda is stalled.
Two senatorial confirmation delays — Secretary of State Rex Tillerson and A-G Sessions — have already had fateful impact in endangering the immigration cornerstone of President Trump’s national security agenda. One of Trump’s 22 executive orders as of Feb. 10 (most of them aimed at enforcing existing laws), is PEO 13769, issued Jan. 27, imposing a 90-day ban on immigration from seven designated Muslim-majority countries — Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen — pending development of “extreme vetting” procedures. The regulations were issued without the benefit of all appointees whose expertise was critical in vetting the sharpness of the PEO’s national security focus; and the legality of both executive authority to issue them and specific directives chosen to implement it. As a result, key questions were not asked and the order was vulnerable to judicial meddling. And meddle the judges did, with relish.
Put simply, the above argues that the confirmation process has run seriously off track. It is time to try to fix it. Fortunately, the Framers foresaw the need for adjustment, and thus the problems can be fixed by federal statute, without resort to amending the Constitution. Thus, Art. II, sec. 2 provides, in pertinent part:
[The president] shall have Power, by and with the Advice and Consent of the Senate, to… nominate, and… appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the 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.
Since the federal government relocated to the District of Columbia in 1800 there have been vast evolutionary changes, and recent abrupt departures from hitherto settled traditions. These collectively argue for drastically streamlining confirmation procedures:
Two of these issues merit special consideration.
Growth of Federal Government. In 1800 the U.S. population was 5.3 million; the largest city was New York, at 60,000 inhabitants — the ten largest cities totaled well under 200,000. There were at most a few hundred people working for the feds, with 26 senators to oversee nominations and appointments. In 2016 there were an estimated 2.1 million civilian plus military federal employees working directly for the government, not counting those working on a contractual or consulting basis. There are over 1,200 executive branch presidential appointees requiring senatorial confirmation. (Presidents typically appoint 75 to 100 federal judges per year, but no more than 100 typically are pending at the start of a new administration.) There are only 100 senators to review nominations.
Inter-Party Conflict. The Trump early days have seen new partisan disruptions entered into the confirmation equation: mass slow-rolling consideration of top nominees; boycotting committee nomination hearings to prevent the quorum necessary for a committee vote; and threats to filibuster President Trump’s Supreme Court nominee — issued before the name of the nominee was even known. The GOP responded to quorum boycotts by changing the quorum rule, so as to send the affected nominations to the Senate floor.
Two NY Times charts show that in Neil Gorsuch the GOP has a nominee who will shift slightly rightward the balance on the Supreme Court that was upset when Justice Scalia died; a Garland ascent would have pushed the Court more than slightly leftward.
The modern era of confrontational judicial nominations began in 1987 with the hearing that led to the rejection of Judge Robert Bork. Bork had written some 400 opinions as a federal appellate court judge, with none reversed by the Supreme Court. Yet the Left mounted a propaganda campaign the likes of which had never been seen before in judicial nomination fights. In November 1986 then-Senator Joe Biden, who was to become Senate Judiciary Committee chairman in January 1987, said this of Bork:
Say the administration sends up Bork and, after our investigations, he looks a lot like earlier Reagan nominee Antonin Scalia. I’d have to vote for him, and if the special-interest groups tear me apart, that’s the medicine I’ll have to take.
Biden had voted earlier in 1986 to confirm Antonin Scalia, whose judicial philosophy resembled that of Judge Bork; Scalia won unanimous Senate approval, 98-0. Yet in 1987 Biden voted to reject Bork, 58-42. Bork was rejected due to politics: fear that he would be a highly influential justice due to his stellar grasp of constitutional law.
The party line of Democrats this time is that they are targeting Judge Gorsuch as payback for a “stolen seat” — the GOP having failed to give Obama’s last nominee, Merrick Garland, a hearing, let alone a vote. But the actual history of Supreme Court confirmations shows that vacancies opening in election years are rarely filled before the new administration takes power.
Scalia died Feb. 13, 2016; Garland was nominated March 16. The example of Anthony Kennedy’s Feb. 3, 1988 confirmation vote is flawed, as the vacancy Kennedy filled opened June 26, 1987, with the resignation of Justice Lewis Powell. Given a ten-week period typical between nomination for and confirmation to the High Court, Garland’s final senatorial vote would likely have come around Memorial Day. Also set aside the Oct. 15, 1956 recess appointment of Justice William Brennan by Republican Dwight Eisenhower, later confirmed in 1957 by a Democratic Senate, as a special case, in that Ike was headed for certain victory in November.
One has to go back to Jan. 4 1940, when FDR’s nomination of Justice Frank Murphy was confirmed, to find an election-year Supreme Court appointment that was voted on before the election; Murphy was confirmed in 12 days. Before that, Benjamin Cardozo was nominated Feb. 15, 1932 by Republican Herbert Hoover and confirmed 9 days later. Both Murphy and Cardozo were rapidly confirmed by Senates controlled by the same party that held the White House.
Confirmation votes earlier than 1925 were taken without a Senate hearing; the first Supreme Court nominee confirmation hearing was in 1925, for associate justice nominee Harlan F. Stone (Stone was later elevated in 1941 to chief justice). No nomination for associate justice has ever been filibustered, though the nomination of AJ Abe Fortas for elevation to chief justice in 1968 was successfully filibustered (due to personal financial entanglements that came to light).
To find a Justice in a presidential election year nominated by a president and confirmed by a Senate controlled by the opposing party, one has to go back to 1888, when Melville Fuller was nominated for chief justice by Democrat Grover Cleveland and confirmed by a Republican Senate.
In the entire 228-year history of the Supreme Court, there have been 112 justices (17 chief justices). Only 12 nominations out of 151 have been flatly rejected by actual Senate vote (others were withdrawn, some succeeded on a later try). With 118 vacancies out of 890 federal judgeships already his to fill, Trump can use the Senate’s “nuclear option” to bypass filibusters, and move the courts rightward.
While Supreme Court vacancies rarely are open more than one year, there are myriad cases of appeals court and trial court nominees bottled up by the opposing party, some for more than two years. In 2005 a “Gang of 14” deal on appellate court nominees was reached by Majority Leader Bill Frist (TN) and then-Minority Leader Harry Reid (NV) to break ten filibusters by Senate Democrats, who agreed to the deal to avoid the GOP exercising what Senator Trent Lott (MS) dubbed the “nuclear option.” It was this option that Harry Reid as Senate Majority Leader exercised in 2013 to enable three Obama nominees to be confirmed for the D.C. Circuit Court of Appeals. The D.C. Circuit judges have long been noted for their judicial expertise in the complex web of laws governing administrative regulatory agencies, most of which are headquartered inside the Beltway. (Though between 1937 and 2012 the caseload per federal appeals judge had grown significantly, the D.C. Circuit’s per-judge caseload was the lightest of all federal circuit courts when Reid went nuclear; this strongly suggests that partisan factor drove Reid’s move.)
Driving partisan conflict is that the federal judiciary today plays a far greater role in American life than a generation ago, when it already had begun expanding its role in areas hitherto thought outside the scope of lawful judicial power. NRO’s Kevin Williamson explains this succinctly, noting what followed the “Borking” of Judge Bork:
A generation ago, Democrats thought they could destroy Robert Bork… and never pay a price for it. They have, and the country has, as an increasingly politicized federal bench has undermined both the prestige and the perceived legitimacy of the judiciary. If you are wondering why Americans haven’t exactly gasped at Trump’s ugly denunciation of a “so-called judge,” that is part of the explanation: We may believe that judges should be above politics, but who believes that they actually are?
Solution: Streamline the Confirmation Process. Do we really need a confirmation vote to fill the post of deputy assistant undersecretary for janitorial affairs in the department of redundancy department?
A fix requires imposing two sharp limits on confirmations: (1) reduce the number of positions requiring senatorial confirmation; (2) impose tight deadlines for a confirmation vote, with a bipartisan supermajority vote required to extend the deadline.
Given the rancor between the parties and their supporters, a return to the days of old is not plausibly in the cards. The above measures should if implemented limit the damage done to administrations and the Congress due to the confirmation process.