President Calls for Judicial Reform

Remarks by the President on Judicial Independence and the Judicial Confirmation Process
The Rose Garden

THE PRESIDENT: Thank you all, very much. (Applause.) Please be seated. Thanks. (Applause.) Thanks a lot for coming, thanks for the warm welcome. Welcome to the White House and the Rose Garden. I'm pleased all of you could be here to stand for a truly independent federal judiciary. The framers of the Constitution knew that freedom and justice depend on fair and impartial judges. To ensure judges of the highest quality, integrity, they designed a system in which the President would nominate judges and the Senate would vote up or down on the nominees.

Today, we are facing a crisis in the Senate, and therefore, a crisis in our judiciary. Highly qualified judicial nominees are waiting years to get an up-or-down vote from the United States Senate. They wait for years while partisans search in vain for reasons to reject them. The obstructionist tactics of a small group of senators are setting a pattern that threatens judicial independence. Meanwhile, vacancies on the bench and overcrowded court dockets are causing delays for citizens seeking justice. The judicial confirmation is broken, and it must be fixed for the good of the country. (Applause.)

Every person nominated to the federal bench deserves a timely vote. I want to appreciate Al Gonzales' introduction. I appreciate his good sound legal advice. He's been my friend for a long time. I'm really pleased he left Austin, Texas to come up here and serve our country. I also want to thank the Attorney General for serving our country, as well. He is doing a fabulous job for our nation. (Applause.) And we wish him a happy 60th birthday today. (Applause.)

I'm so pleased the leaders of the United States Senate are here. Bill Frist is ably leading the United States Senate. Thank you for coming, Senator. (Applause.) I want to thank Senator Orrin Hatch for being here, as well. The Chairman is going to lead the efforts to reform our process. And, Mr. Chairman, I support your work to make sure we increase judicial pay across the United States. Thank you for your leadership. (Applause.)

I'm also grateful that Senators Cornyn, from Texas, Dole -- and Graham, of South Carolina -- Mitch McConnell, Zell Miller and Arlen Specter are with us. These folks represent the best of the United States Senate, and thank you for coming. (Applause.)

I appreciate the fact that members of John Aschcroft's staff from the Justice Department are here, in particular Larry Thompson, Bobby McCallum, and Ted Olson. Thank you all, for your good work and service. (Applause.)

I know we've got a lot of distinguished lawyers who are here. A.P. Carlton is the President of the American Bar Association. A.P., I appreciate you coming and lending your efforts to make sure that the system works on behalf of the American people. Duard Bradshaw is the President of the Hispanic National Bar Association -- is here, as well. Welcome to you both. Thank you for your concern. (Applause.) And welcome to all.

Exactly two years ago, I announced my first 11 nominees to the federal appeals court. I chose men and women of talent and integrity, highly qualified nominees who represent the mainstream of American law and American values. Eight of them waited more than a year without an up-or-down vote in the United States Senate. As of today, three of that original group have waited two years. Their treatment by a group of senators is a disgrace.

Overall, I have sent to the Senate 42 superb nominees for federal courts of appeal. Eighteen of them are still waiting for a vote in the Senate; and eight of those 18 have been waiting more than a year. More appeals court nominees have had to wait over a year for a hearing in my presidency than in the last 50 years combined. This is not just business as usual; this is an abnication of constitutional responsibility, and it is hurting our country. (Applause.)

As President, I have the constitutional responsibility to nominate excellent judges. And I take that responsibility seriously. The men and women I have nominated are an historically diverse group, whose character and credentials are impeccable.

This group includes Miguel Estrada, my selection for the D.C. Circuit Court of Appeals. Miguel Estrada has served in the Justice Department under Presidents from both political parties. He has argued 15 cases before the U.S. Supreme Court. He has earned the American Bar Association's highest mark, a unanimous rating of well qualified. If confirmed, Miguel would be the first Hispanic American ever to serve on the court that is often considered the second highest in the land. Miguel Estrada's nomination has strong support from citizens and leaders in both political parties. And he has support from a majority in the United States Senate. Yet, after two years, he still cannot get an up-or-down vote on the floor of the Senate. A group of Democratic senators has insisted that Mr. Estrada answer questions that other nominees were not required to answer. These senators have sought confidential Justice Department memos not sought for other appeal court nominees -- a request opposed by all living former Solicitor Generals because of the damage it would do to our legal system. These senators have also filibustered for three months to prevent a vote on Miguel Estrada's nomination. Never before has there been a successful filibuster to prevent an up-or-down vote on an appeals court nominee. This is an unprecedented tactic that threatens judicial independence and adds to the vacancy crisis in our courts. And it is wrong. (Applause.)

Justice Priscilla Owen, whom I have nominated to the Fifth Circuit Court of Appeals, also has the support of the majority of United States senators. And she, too, has become the target of a filibuster. Justice Owen is an extraordinarily well qualified nominee, who has served with distinction on the Texas Supreme Court since 1995. Like Miguel Estrada, she has earned the American Bar Association's unanimous rating of well qualified. She has strong bipartisan support, including endorsements from three Democrats who served with her on the Texas Supreme Court; and endorsements from 15 past presidents of the Texas bar. Yet, Justice Owen has been waiting two years -- two years -- for an up-or-down vote on the Senate floor.

The list goes on. And the trend is clear: Of the 18 appeals court nominees awaiting a vote, all who have been rated by the American Bar Association have received well qualified or qualified ratings. Some Democratic senators have referred to those ratings as the gold standard. But those same senators have ignored those high marks, and instead of applying the gold standard, have applied a double standard to some of my nominees. The Senate has a constitutional responsibility to hold an up-or-down vote. (Applause.)

Throughout most of our history, the Senate has exercised this responsibility and voted promptly on judicial nominees. During the administration of former Presidents Bush and Clinton, however, too many appeals court nominees never received votes. And today the situation is worse than ever, making the need for reform greater than ever.

While senators stall and hold on to old grudges, American justice is suffering. Dockets are overcrowded, judges are overworked, and citizens are waiting too long for their cases to be heard. The regional appeals courts have a 12 percent vacancy rate. And filings in those courts have reached an all-time high, again last year. The Sixth Circuit, which covers Ohio and Michigan and Kentucky and Tennessee has four vacancies on a 16-judge court. The D.C. Circuit has three vacancies on a 12-judge court. Of the eighteen open seats that could be filled by the nominees waiting for Senate confirmation, 15 have been classified as judicial emergencies by the Judicial Conference of the United States. The American Bar Association has called this an emergency situation. And the Chief Justice recently said that these vacancies and rising caseloads threaten the proper functioning of federal courts and asked the Senate to give every nominee a prompt up-or-down vote.

The bitterness and partisanship that have taken over the judicial confirmations process, also threaten judicial independence. Some senators have tried to force nominees to take positions on controversial issues before they even take the bench. This is contrary to the constitutional design of a separate and independent judicial branch.

Six months ago, I proposed a plan to end the vacancy crisis and make the process work again. This plan would apply no matter who lives in the White House or no matter which party controls the United States Senate. Here's how it works: Judges on the federal appellate and district courts would notify the President of their intentions to retire at least a year in advance whenever that is possible. The President would then submit a nomination to the U.S. Senate within 180 days of receiving notice of a vacancy or intended retirement. The Senate Judiciary Committee would hold a hearing within 90 days of receiving a nomination. And the full Senate would vote on a nominee no longer than 180 days after the nomination is submitted. The goal is to have a new judge ready to take the bench on the same day the sitting judge retires.

Since I announced this plan, the Judicial Conference has done its part by strongly urging judges to give a one-year advance notice of retirement. I've done my part with an executive order issued today formalizing my commitment to submit nominations within 180 days after notification of a vacancy. And now we're waiting for the Senate to do its duty and ensure timely up-or-down votes for every single nominee. (Applause.)

Majority Leader Frist and Judiciary Chairman Hatch are pushing hard for progress on this issue. They are reformers. And I thank you for your hard work. (Applause.) U.S. Senator Arlen Specter and U.S. Senator Zell Miller have proposed reforms to fix the problem. And I thank you for your leadership. (Applause.) I'm very pleased that 10 freshmen senators of both parties have come together to demand the return of dignity and civility to the process. As newcomers, they see the futility of endless bickering that blocks good judges from the bench.

Under the leadership of John Cornyn and Democrat Mark Pryor, these senators sent a letter to the Senate leadership last week. And this is what it said: None of us were parties to any of the reported past offenses, whether real or perceived. None of us believe that the ill will of the past should dictate the terms and direction of the future. Each of us firmly believes the United States Senate needs a fresh start.

I completely agree, and so do the American people. (Applause.) I believe a fresh start is possible. And we will stand with these senators to bring needed reform on behalf of the American people. And I ask for your help -- I ask for your help to make sure our judiciary functions in a way that will make the people proud. I ask for your help in talking to senators as we convince them that obstructionist policies harm the American people. It hurts the justice system that makes us the envy of the world. I know we can move forward. I look forward to the day when a good nominee gets a vote -- up or down, in timely fashion -- on the floor of the United States Senate. Thank you all for coming. And God bless. (Applause.) Thank you all for coming. (Applause.)

Sen. Frist Proposes Filibuster ReformsFrist proposed a process in which it would take gradually fewer votes to overcome filibusters preventing final votes on judicial confirmations.

Democrats were skeptical of the Frist plan. "If it ain't broke, don't fix it," said Democratic leader Tom Daschle of South Dakota. He said the Senate has confirmed 124 judicial nominees since Bush took office and "I don't see much broken."

It now takes 60 votes to end a filibuster. Republicans have failed in six attempts over the past few months to end a filibuster over the nomination of Michael Estrada to the U.S. Court of Appeals for the District of Columbia. Republicans have also unsuccessfully tried twice to end a filibuster over the nomination of Priscilla Owen to a federal appellate court judgeship.

Under the Frist plan, it would take 60 votes to stop a filibuster on the first try, 57 on the second, 54 on the third and 51 on the fourth. The entire process would take about 13 days, he said.

He said his proposal was modeled after a broader plan, made by Democratic Sens. Joe Lieberman of Connecticut and Tom Harkin of Iowa in 1995.

"Clearly we have entered upon a new era damaging to the Senate as an institution," he said of the recent use of the filibuster to stop the president's judicial nominations. "A disciplined minority can cast an ever-lengthening shadow over the confirmation process."

Filibustering the confirmation process is a violation of Senators oath of office and unconstitutional.

US Senate: Art & History Home > Origins & Development > ... I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

Senate Is to Advise And Consent, Not Obstruct and Delay The Framers Envisioned A Narrow Role for The Senate in The Confirmation Process.

United States Senator Jeff Sessions Wednesday, February 26, 2003 Judicial Nominations -- Miguel Estrada

How did we get into this circumstance? How did we get to this point where the ground rules have changed, that we are into an obstructionist tactic, an unfair procedure? What happened? After the last election when President Bush was elected, the New York Times reported that the Democrat majority, the Democratic Senators at that time early in President Bush's administration had a retreat at some location unknown to me, and they heard at that time from three liberal law professors, Lawrence Tribe, Cass Sunstein, and Marcia Green burger. These liberal professors at this private retreat told the Democrats at that time, they should change the ground rules for nominations. They should ratchet up the pressure and they should alter the historic rules of courtesy, the historic presumptions in the Senate, and they should change how nominees are treated. They said: You have the power to do it. Do it, Democrats. Stand up and block these nominees. Do not accept the nominees from President Bush, like this Republican Senate accepted President Clinton's nominees. Fight every step of the way. That is apparently what has happened.

Shortly after that, when the majority in the Senate changed, I served on the Administrative Oversight and the Courts subcommittee. Senator Schumer chaired that subcommittee. He held hearings. He held hearings to argue the point that the burden of proof for a confirmation of a judge should change and it ought to be on the judge to prove he is qualified. That has never been done before in the history of this country. We had Lloyd Cutler, former Counsel to the White House of Democrat Presidents. We had others testify. They testified that it would be wrong to shift the burden to the nominee, it was not the right thing to do. Then he had hearings to say we ought to just consider your politics, your ideology, as he said, and we can consider somebody's politics, and we can reject them if we do not agree politically.

Senators Mull Options to End 'Advise and Dissent'

Sen. John Cornyn (R-Texas) chaired the hearing. He agrees with both Miller and the White House.

"Any exceptions to the doctrine of majority rule, such as any rule of a supermajority vote being required on nominations, must, in my view, be expressly stated in the Constitution," he said.

"For example, the Constitution expressly provides for a supermajority, two-thirds voting rule for Senate approval of treaties and other matters," Cornyn continued. "That's not the case, however, with regard to judicial nominees."

The American Center for Law and Justice (ACLJ) prepared a report for the subcommittee entitled "An End to Nomination Filibusters and the Need for Cloture Motions," which argues that the Senate can, by a simple majority vote, amend its own rules to eliminate the use of filibusters against judicial nominees.

Under current Senate Rule XXII, the Senate is bound to allow unlimited debate unless 60 senators vote to "invoke cloture," ending discussion on the matter under consideration. When Rule XXII was adopted, the sponsors included language requiring a two-thirds majority vote to amend the rule.

ACLJ Chief Counsel Jay Sekulow believes that provision is not binding on the current members of the Senate.

"Nothing in the Constitution, the Federalist Papers or other source documents indicates the obstructive and delaying tactics by legislative minorities were intended to be the source of the Senate's deliberative care," Sekulow wrote.

"A willing majority of senators [could] make new rules for the Senate," Sekulow concluded, "either eliminating the filibuster or substantially curtailing the impact of a filibuster by eliminating the supermajority requirements."

Miller's proposal, examined in light of the ACLJ analysis, appears to be both constitutional and practical. Democrats may have a harder time opposing Miller's strategy, as well, both because he is a Democrat and because it is modeled after a proposal originally introduced in 1995 by Tom Harkin (Iowa) and Joseph Lieberman (Conn.), both Democratic senators.

THE AMERICAN CENTER FOR LAW AND JUSTICE, INC. JAY ALAN SEKULOW Chief Counsel Given the prerogative of the majority, and the respect for that prerogative expressed in Brown, Metzenbaum, and Davis, a willing majority in the Senate could make it in order for the Senate immediately to take up the questions proposed above, regarding the making of the Senate’s rules, the prohibiting of filibusters on judicial nominations (or the phasing out of them), and the confirmation of Miguel Estrada (or other nominees). And while sixty votes may not be found to invoke cloture, Brown, Metzenbaum, Davis, and their predecessors in law and Senate practice confirm that all that would be required to make the necessary rule changes is a majority of a quorum of the Senate – a sufficient number of Senators to insure that the power of the body to act has arisen.

Judicial Nominations, Filibusters, The Constitution: When A Majority Is Denied PART 1 " To reject on constitutional grounds a supermajority requirement for cloture regarding judicial nominees does not compel the same conclusion regarding legislation. The Founding Fathers worried about an excess of law making and erected barriers to that end, including a presidential veto. Filibustering to defeat legislation works towards that same constitutional end. In contrast, the Founding Fathers voiced no concern over the appointment of too many federal judges or judges echoing a uniform philosophy of judging. Filibustering judicial nominees with a supermajority cloture rule advances no constitutional objective or sentiment. Indeed, in the particular cases of two circuit court nominees now before the Senate, the filibustering wars with the constitutional goal of an independent judiciary to check legislative excesses. It is transparent that several pro-filibuster Senators aim to block confirmation of the nominees because fearful they might check congressional usurpations under either the Commerce Clause or section 5 of the Fourteenth Amendment. In other words, the filibusters are calculated to weaken judicial review of federal statutes.

Judicial Nominations, Filibusters, The Constitution: When A Majority Is Denied PART 2 " My advice is simple: follow the law of the Constitution. The original understanding gives unfettered nomination authority to the President. So too, the text allows the full Senate to reject any nominee for any reason, though commentary at the founding supposed that the reasons would have far more to do with intellectual quality or capability than partisan disagreement with the nominee’s judicial perspective. Beyond that, President Bush has put the matter simply and directly: "the Senate has a constitutional responsibility to exercise its advice and consent function and hold up-or-down votes on all judicial nominees within a reasonable time after nomination."

Now if the response to this is that the Senate, by constitutional text, has sweeping authority to determine its own rules under Article I, section 5, that is, with respect, an incomplete and evasive response. As the Supreme Court unanimously held in United States v. Ballin (1892), "[t]he constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained." In a constitutional system, power, like freedom, is not without limit, and the exercise of one provision to thwart the reasonable nominating discretion of the executive and undermine the functioning of the judiciary is subversive of the separation of powers and the constitutional system.

This is especially so when adopted senate rules disregard the principal of majority governance by imposing textually unauthorized super-majority requirements, and where those supermajority requirements are the product of rules never adopted by the current Senate.

MR. STEVEN CALABRESI Professor of Law Northwestern University Law School

The Senate can always change its rules by majority vote. To the extent that Senate Rule XXII purports to require a two-thirds majority to invoke cloture on a rule change, Rule XXII is unconstitutional. It is an ancient principle of Anglo-American constitutional law that one legislature cannot bind a succeeding legislature. The great William Blackstone himself said in his Commentaries that "Acts of parliament derogatory from the power of subsequent parliaments bind not...". Thus, to the extent that the last Senate to alter Rule XXII sought to bind this session of the Senate its action was unconstitutional. A simple majority of the Senate can and should now amend Rule XXII by majority vote to ban filibusters of judicial nominations.
Leading scholars in this area of law such as John O. McGinnis of Northwestern University, Michael Rappaport of San Diego University, and Erwin Chemerinsky of the University of Southern California all have written that the Senate Rules can be changed at any time by a simple majority of the Senate. More importantly, Vice Presidents Richard M. Nixon, Hubert H. Humphrey, and Nelson A. Rockefeller have all so ruled while presiding over the United States Senate. Some commentators have gone even further in challenging filibusters of legislation as unconstitutional, as did Lloyd Cutler, White House Counsel to Presidents Carter and Clinton. Indeed, eight years ago, 17 very distinguished law professors, led by Yale Law Professor Bruce Ackerman, opined that a new Rule in the House of Representatives purporting to create a 3/5 requirement for enacting new tax increases was unconstitutional. The Ackerman letter wisely called for limiting the proliferation of new extra-constitutional, super-majority rules – counsel that the Senate should heed here.

What will happen if the filibuster is allowed to spread to the new area of judicial confirmations? It will next spread to the resolution every new Senate must pass to organize itself, set up Committees, and apportion staff and other resources. The filibusters next expansion will be one wherein a minority of 41 Senators will claim they are entitled to equal slots and Committee resources as are enjoyed by a majority of 59 Senators. This is the logical extension of the filibusters protection of minority rule under the inexorable Calhounian logic now being played out.

President Bush's Judicial Nominees Represent A Legacy Worth Fighting ForTo be honest about it, President Bush's nominees for the federal bench have been better than either those nominated by Reagan or his father. They are extraordinary. If Bush can fill all the vacancies in the federal court system, even if he should be denied a second term, then he will have made the greatest contribution a president can make.

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