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Confirmation Politics Clinton, Congress, and the Appointment of Federal Judges john anthony maltese Bill Clinton’s goals for the appointment of federal judges during his administration can be summarized as a commitment to quality, diversity, moderation, and consensus. During the 1992 presidential campaign, Clinton answered detailed questions about legal issues for the American Bar Association Journal and also wrote an article that covered many of the same points for the National Law Journal.1 He stressed these goals in both articles. As president he did much to follow through on them. Background: The Judicial Selection Process Article II, section 2, of the Constitution says that the president “shall nominate , and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.” The ability of the Senate to reject nominees with a simple majority vote gives it considerable power. If one excludes consecutive nominations of the same individual by the same president for the same seat on the Supreme Court,2 presidents have submitted 152 Supreme Court nominations to the Senate through President Barack Obama’s 2010 nomination of Elena Kagan. Of these 152 nominations, seven of the nominees declined,3 one died before taking office,4 and one expected vacancy failed to materialize.5 Yet another (Bush’s nomination of John Roberts Jr. to fill Sandra Day O’Connor’s associate justice seat) was withdrawn before Senate action and then resubmitted to fill a different seat. Of the 142 remaining nominations, 116 were confirmed by the Senate, but the other twenty-six may be classified as “failed” nominations because Senate opposition blocked them: the Senate rejected twelve by roll-call vote,6 voted to postpone or table another five,7 and passively rejected five others by taking no action.8 Presidents withdrew the remaining four in the face of likely Senate defeat.9 The number of “failed” nominations rises to twenty-seven 266 • john anthony maltese if Douglas Ginsburg (whose nomination was announced by Ronald Reagan but withdrawn before it was officially transmitted to the Senate) is included.10 Although the Constitution explicitly established (and requires) one Supreme Court, it left the creation of lower federal courts up to Congress. Congress almost immediately established such courts in the Judiciary Act of 1789. The system has grown and evolved since then. Including the nine justices of the Supreme Court, there are currently 878 seats for federal judges with lifetime tenure and guaranteed compensation (so-called Article III judges) who sit on district courts (681 seats), courts of appeals (179 seats), and the Court of International Trade (9 seats).11 The precise number of federal judges at all levels (including the Supreme Court) is set by Congress and reflects factors such as caseload. The appointment process for all federal courts is theoretically the same (nomination by the president, followed by either confirmation or rejection by the Senate), but presidents have traditionally had less power over the appointment of lower federal judges. This is especially true at the district level, where vacancies arise within judicial districts that fall within the confines of a single state. Since the administration of George Washington, an informal practice of “senatorial courtesy” has given senators from the state where a vacancy takes place veto power over nominees they disapprove. Thus, presidents turned to “home-state” senators (especially those from their own party) for advice about whom to nominate. Former attorney general Robert F. Kennedy said that such a system amounted to “senatorial appointment with the advice and consent of the Senate.”12 Thus, district court appointments became a form of patronage for home-state senators. Given the norm of senatorial courtesy, it was all but impossible for the president to ignore the advice of these senators. As William D. Mitchell (Herbert Hoover’s attorney general) put it in 1929: “It would be futile, of course, for the President to nominate a United States District Judge who could not be confirmed because of the determined opposition of the Senators from his state.”13 Senatorial courtesy also applied—though to a lesser extent—at the court of appeals level where judicial circuits cover more than one state. Concerned that merit was not the primary motivation of home-state senators when suggesting nominees and eager to diversify the federal bench through the appointment of more women and minorities, Jimmy Carter instigated significant reforms of lower-court selection. Through a 1977 executive order, he took the power to screen and suggest nominees out of the hands...

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