The Magazine

Droit du Sénateur

Senatorial privilege vs. quality judges.

Mar 27, 2006, Vol. 11, No. 26 • By EDWARD WHELAN
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PRESIDENT BUSH RECENTLY NOMINATED MILAN D. Smith Jr. to fill a longstanding vacancy on the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit, which covers nine western states, is a notorious bastion of liberal judicial lawlessness. So the White House should be looking to fill the vacancy with an outstanding jurist who is learned in questions of federal constitutional and statutory law and who is prepared to dedicate two decades or more to the arduous task of helping to transform that court.

Unfortunately, Smith hardly fits the bill. A Los Angeles-area attorney, Smith, 64, has specialized for nearly four decades in real estate transactions--a specialty that has little bearing on the questions that occupy federal courts. In his one term as a member of a state antidiscrimination commission, he "distinguished himself" by "his time-management skills," says one of his supporters. He recently explained his decision to step down from the commission by implying disdain for his fellow party members: "I'm a Republican, but I'm a Republican with a heart."

Consider also David L. Bunning, whom President Bush nominated to a federal district judgeship in 2001. Thirty-five years old when he was nominated, Bunning had been a lawyer for only ten years. Citing his "very limited and shallow" experience with civil cases, his not "particularly challenging" criminal caseload as a federal prosecutor, his unimpressive writing, and his middling academic record, the ABA rated Bunning "not qualified" for a judgeship. Whether or not one credits the ABA rating--a minority of the committee did find Bunning "qualified"--it would be difficult to argue that Bunning was prime judgeship material. But the Senate, with a Democratic majority intent on blocking many of the president's judicial nominees, expeditiously and unanimously confirmed Bunning.

Smith and Bunning might buck the odds and prove to be outstanding judges, and I certainly don't mean to suggest there is anything exceptional about their questionable qualifications. On the contrary, unpromising judicial picks have been all too common among President Bush's lower-court nominees. But what the low caliber of these nominees helps demonstrate is the extraordinary and regrettable influence senators exercise over federal judgeships in their home states. For the key facts driving Smith's candidacy are that Barbara Boxer, the ultraliberal senator from California, recommended his nomination and that Smith is the brother of Oregon's Republican senator Gordon Smith. His brother and Boxer, Milan Smith says, "are very good friends." As for Bunning, the district judgeship that he now occupies is in Kentucky, the home state of Republican senator Jim Bunning, who, not coincidentally, is his father.

For all the attention given to the Democratic filibuster of judicial nominees in recent years, the greater impediment to President Bush's ability to appoint high-quality practitioners of judicial restraint to the federal district and appellate courts comes from obscure Senate practices that enjoy widespread bipartisan support from senators. These practices exist because they serve the narrow interests of individual senators. They are, in short, perquisites of membership in the club known as the United States Senate.

After his remarkable successes in winning the confirmations of Chief Justice John Roberts and Justice Samuel Alito, President Bush must return to the less glamorous work of filling vacancies on the lower courts. This work is more difficult not only because of the large number of open seats but because of the great influence that home-state senators believe themselves entitled to exert over lower-court nominations.

This influence can manifest itself in two ways: first, through the Senate Judiciary Committee's blue-slip policy, which serves primarily as a tool of senators in the party opposite the president's; and second, through the entrenched attitude of same-party senators that they have a virtual right to designate judicial nominees in their states.

LET'S BEGIN WITH THE BLUE-SLIP POLICY, which is generally thought to have arisen as an informal Senate Judiciary Committee practice some 50 years ago. The "blue slip" refers to the piece of paper that the chairman of the committee sends to a senator informing him that the president has made a nomination to a position in his home state and inviting him to object or offer support. A senator who objects can express his objection on the blue slip (a "negative blue slip").

The substance of the blue-slip policy, both historically and as it applies today, is murky and disputed. The policy's contours depend primarily on four factors. First, which grounds may a senator legitimately rely on to object to a home-state nomination? May he rely simply on personal grounds, such as the fact that the nominee is the sister of his next general-election opponent? Or may he also rely on broader political or ideological differences with the nominee?

Second, what effect will the committee chairman afford a negative blue slip? Will it suffice to kill a nomination? Or will it merely be given the indeterminate promise of "substantial weight"? Does it matter whether the other home-state senator has also submitted a negative blue slip?

Third, to which judicial nominations will the blue-slip policy apply? Only to those for district judges, whose caseloads clearly relate to the home state in which the judge will sit? Or also to those for appellate judges, even though appellate judges from different states in the same circuit take part equally in the cases arising from the district courts across those various states?

Fourth, and oddly neglected, is whether the Senate majority (and thus the committee chairman) is of the same party as the president. If the Senate majority is of the same party as the president, then a negative blue slip by a minority senator operates to obstruct (to the extent of the effect accorded the blue slip) the presumed common will of the president and the Senate majority. By contrast, if the Senate majority is of the party opposing the president, then the obstructing effect of a negative blue slip by a majority senator is more readily justifiable as an exercise of power delegated to that senator by his colleagues in the majority.

How these factors interact determines how sensible any particular blue-slip policy is. If, for example, blue slips were to apply only to district-court nominees and senators were to return negative blue slips only when they had genuine personal grounds for objecting to the nominee, a committee chairman could reasonably give those negative blue slips nomination-killing effect, even where the negative blue slip came from a minority senator. After all, it should not be a difficult matter for the president to find an equally qualified nominee who does not arouse the senator's personal opposition. Conversely, where a negative blue slip can be returned for purely ideological reasons, it would seem defensible for a committee chairman to give decisive effect to that negative blue slip when it is submitted by a member of his own party, but it would seem suicidal--or, more precisely, remarkably detrimental to the interests of his own party--to do so when it is submitted by a member of the minority party.

Curiously enough, there are some individuals deeply involved in the current confirmation process who believe that this absurd policy is precisely what Arlen Specter, the committee's chairman for the past year, has adopted, both for district-court and appellate-court nominees. This belief explains why it would be helpful to Milan Smith, rather than damning, that Barbara Boxer welcomes his nomination.

Orrin Hatch, Specter's predecessor as chairman, stated clearly in 2003 that he would abide by the same blue-slip policy that Teddy Kennedy and Joe Biden had adopted when they each chaired the committee. Under what Hatch labeled the "Kennedy-Biden-Hatch blue-slip policy," the return of a negative blue slip on a nomination would be given "substantial weight," but a committee hearing and vote on the nomination would proceed. Specter has issued no such statement, and he has not yet held a hearing on any nominee with negative or unreturned blue slips.

When Hatch spelled out his blue-slip policy in 2003, the left attacked him for departing from the nomination-killing policy that he had supposedly applied as chairman in the late 1990s to nominees of President Clinton. What this attack ignored, of course, is that the situation in the late 1990s, when the president was of a different party from the Senate majority, was manifestly different from the situation today, when the president and the Senate majority are of the same party. Especially when it is acceptable to return a negative blue slip on ideological grounds, it is elementary common sense, not hypocrisy, for a committee chairman to distinguish between granting his own majority colleagues the power to block a nominee of a president of the opposite party, on the one hand, and granting a member of the minority the ability to block a nominee of a president who is of the same party as the committee chairman.

This common sense is also supported by precedent. Since the beginning of the Nixon administration 37 years ago, there have been only two brief periods in which the president and the committee chairman were both Democrats: 1977 to 1981, with President Carter and Chairman Kennedy, and 1993 to 1994, with President Clinton and Chairman Biden (and when I was a Senate Judiciary Committee staffer). As Hatch made clear, Kennedy and Biden adopted the same policy that Hatch adopted in 2003. In particular, it was after Carter became president that Kennedy diluted the blue-slip policy that had applied to Nixon and Ford nominees, so that a negative blue slip would be accorded only "substantial weight."

A FEUDAL LORD'S SUPPOSED RIGHT--the droit du seigneur--to usurp a vassal's marital privileges with his bride on their wedding night is apocryphal. But what might be called the droit du sénateur--a senator's asserted right to direct the president in his constitutional authority to name judges in the senator's home state--is very real.

The Constitution provides that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" federal judges. The syntax of this provision makes clear that the power to nominate lies exclusively with the president and that the constitutional role of the Senate comes into play after the president makes a nomination. As Alexander Hamilton stated in Federalist 66: "It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose--they can only ratify or reject the choice he may have made."

But the practical reality has long been very different. Senators of the same party as the president regularly claim the right to select district-court nominees in their states, and presidents, including President Bush, largely acquiesce in these claims. Presidents are free to engage in whatever prenomination consultation they find expedient, and I am certainly not contending that the role that senators have seized is unconstitutional. But, as Hamilton explained in Federalist 76, senators' involvement in the choice of nominees multiplies the prospect that "personal considerations" will be given undue weight at the expense of qualifications. As the Bunning nomination exemplifies, senators have undermined the advantages in quality that Hamilton recognized should flow from having "sole and undivided responsibility" for nominations vested in the president.

Indeed, a senator selecting judicial nominees will naturally be inclined to regard the occasion as one more opportunity to dispense patronage to supporters. Presidents, of course, are hardly immune from the same temptation. But, Hamilton argues, a president will have a "livelier sense of duty and a more exact regard to reputation." This would seem to be especially true of a president, like Bush, who has clearly stated his commitment to a jurisprudential philosophy of judicial restraint and who has staffed his ranks of nominations-vetters with excellent lawyers who share that commitment. Thus, there should be no doubt that exercise of the droit du sénateur generally operates to degrade the quality of President Bush's district court nominees.

Fortunately, the degree to which senators actually exercise this perceived right varies considerably, and there are numerous district court nominees who have been of high caliber. But this right also threatens to expand, as senators aim to increase their influence on the selection of appellate court nominees whose chambers would be in their states.

Even senators of the party opposite the president's have gotten in on the act. In 2001, when Democrats controlled the Senate, California senators Boxer and Dianne Feinstein set up a commission to screen candidates for district judgeships and succeeded in coercing President Bush to select his nominees from the candidates approved by the commission. Despite the Republican takeover of the Senate in 2002 and further Republican gains in 2004, the role of that commission remains unchanged, and every nominee of President Bush to a district judgeship in California has been preapproved by the commission.

HOW ADVERSE is the Senate's effect on the quality of judicial nominees? As it happens, the D.C. Circuit, which is immune from any home-state senator influence, provides a sort of control group against which judges from other courts of appeals can be compared. Although only three courts of appeals have fewer seats, the D.C. Circuit over the past 25 years has featured a slew of outstanding conservative jurists--most prominently Antonin Scalia, Robert Bork, Clarence Thomas, and John Roberts, but also many lesser-known stars, such as (to name just a couple) Laurence Silberman and Douglas Ginsburg. No other court of appeals comes close to matching this roster.

It might be thought that the D.C. Circuit's reputation for producing Supreme Court nominees makes it especially attractive to stellar candidates. But I think it more likely that the D.C. Circuit has produced so many Supreme Court nominees because the absence of home-state senator interference makes it easier for strong candidates to be nominated and confirmed. Judge Janice Rogers Brown provides a telling case in point. Brown was a California supreme court justice when President Bush nominated her to the D.C. Circuit in 2003. The White House fully understood that it would be very difficult, if not impossible, to confirm her to the Ninth Circuit. Indeed, senators Boxer and Feinstein killed the earlier nomination of Carolyn Kuhl to a Ninth Circuit seat. Although Democrats put up a major fight, Brown was confirmed to the D.C. Circuit last year.

Consider also Brett Kavanaugh, President Bush's currently pending--and superbly qualified--nominee to the D.C. Circuit. Kavanaugh is a native of Maryland, and a seat on the Fourth Circuit that Maryland's Democratic senators regard as a "Maryland seat" has been vacant for more than five years. But these senators forced President Bush to abandon his original outstanding candidate for that slot (Maryland resident Peter Keisler) and would likewise have fought tooth-and-nail against Kavanaugh as a Fourth Circuit nominee. By contrast, Kavanaugh should be confirmed to the D.C. Circuit soon (though it shouldn't be overlooked that his nomination has already been pending for more than two-and-a-half years).

There are, of course, other explanations for the quality of D.C. Circuit judges. In particular, every president undoubtedly pays special attention to D.C. Circuit nominations because that court, with its heavy administrative-law caseload, plays a major role in reviewing actions of the executive branch. But it seems clear that the much-reduced senatorial influence--resulting from the inapplicability of the blue-slip policy and the absence of any home-state senator pushing for his brother-in-law to be nominated--also contributes significantly to quality.

The ill effects of senatorial influence extend beyond reducing the quality of nominees. The clout of senators also operates perversely to ensure that, broadly speaking, weaker nominees are confirmed faster than stronger ones. Assume two nominees, one who has de facto been selected by a senator (and who therefore is more likely to have been selected because of his ties to the senator than because of his qualifications) and the other who is a genuine high-quality presidential pick. In an exercise of reciprocal back-scratching, the senator's colleagues will likely put his pick on the faster track.

Indeed, Senate Democrats like to deflect criticism of their unprecedented filibusters of lower-court nominees by citing statistics showing how many of the president's nominees have been confirmed. What these statistics obscure is that the Senate has disproportionately confirmed the nominees whom senators understand to be essentially senatorial selections. For very good reasons, not all nominees are of equal import in the eyes of the White House. Yet senatorial selections provide Democrats cover to use other procedural mechanisms--such as the anonymous "hold" or the withholding of unanimous consent--to stall or block the most important nominees.

Politics is politics, and I have no illusion that the successful career politicians who occupy Senate seats can be induced to abandon the self-serving practices that enhance their power and help advance their reelection. But there are some minimal steps that certain senators should take.

First, Chairman Specter should make clear that Barbara Boxer and company do not have the unprecedented power to veto President Bush's judicial nominees. Specifically, he should expressly adopt the same blue-slip policy that former chairmen Kennedy, Biden, and Hatch applied when each was dealing with a president of his own party: The return of a negative blue slip, while accorded "substantial weight," will not impede the committee from proceeding to a hearing and a vote on the nomination.

Second, Republican senators, while continuing to exert extraordinary influence on the selection of district-court nominees, should yield full nominating power to President Bush on appellate-court nominees. The work of a court of appeals judge has no particular connection to a single state, and there is no principled basis for a home-state senator to use the incidental fact of the presumed location of a vacancy to invoke any influence over the nomination to fill that vacancy. Republican senators should agree that any views they offer on appellate-court nominations are purely advisory.

Third, Specter and Majority Leader Bill Frist should press to make sure that longstanding nominees receive committee votes and final Senate action. It is, on balance, good that the David Bunnings and Milan Smiths, once nominated, proceed to confirmation. But their success should not come at the expense of nominees like Terry Boyle (nominated to the Fourth Circuit in May 2001) and Brett Kavanaugh.

Edward Whelan is president of the Ethics and Public Policy Center and a contributor to National Review Online's Bench Memos blog on judicial nominations.