The Clinton Approach
When President Bill Clinton assumed office in January 1993, 127 of the 828 authorized federal judgeships were vacant. To fill those vacancies, President Clinton worked with the Senate Democratic majority, as well as Senate Republicans, to find consensus nominees. To the disappointment of many who advocated the nomination of ideological liberals to counterbalance the ideological conservatives nominated by Presidents Reagan and Bush, President Clinton nominated judicial moderates, by and large. In the view of one court-watcher, the Clinton administration did not focus on countering, with the intellectual leaders of the left wing of his party, the conservative firepower the Reagan and Bush administrations loaded on the federal courts. "Clinton was not a die-hard liberal himself, and he tended to nominate centrist legal professionals in tune with his more centrist politics." 4 Furthermore, as a political matter, the Clinton administration was reluctant to nominate judges unless more than 60 Senate votes for confirmation were expected.5
When Republicans gained the Senate majority in 1995, President Clinton continued his efforts to work with Senators from both parties, often asking Senate Republicans to help him identify prospective nominees and conferring with Senate Judiciary Committee Chairman Orrin Hatch, R—Utah. Notwithstanding this high level of consultation, the Senate's most conservative Republicans began to foreclose all avenues to Senate confirmation for many of President Clinton's nominees. Blue slips, holds, and unnecessary debate were the tools most often employed to slow or stop confirmations.
Blue Slips and "Holds"
Under longstanding Senate tradition, when a President nominates someone to a federal judicial position, the two Senators from the nominee's home state have an opportunity to indicate their approval or disapproval of the nominee to the Committee Chairman. Because returning a questionnaire printed on blue paper indicates approval, the process is known as the "blue slip" policy. Under Senate rules and custom, withholding a blue slip or returning a negative blue slip could forever doom a nomination or, at least, make the road to confirmation a bumpy one.
The blue slip process was largely unknown to the public until 1979, when Senate Judiciary Committee Chairman Edward Kennedy, D-Mass., turned public attention to the issue. Frustrated by the lack of diversity on the federal bench and recognizing that blue slips may have contributed to that problem, Senator Kennedy announced that the process would be reformed. At a Judiciary Committee hearing, he announced that although he would not ignore the 25-year old blue slip tradition, the withholding of a blue slip by a Senator would not preclude action on a nominee. Instead, in the absence of a returned blue slip, the Judiciary Committee would vote to determine whether or not the nomination should go forward.
Senator Joseph Biden, D-Del., took over the Chairmanship of the Judiciary Committee in 1987, but did not articulate a blue slip policy until 1989. In a letter to President George H.W. Bush, Senator Biden explained:
The return of a negative blue slip will be a significant factor to be weighed by the committee in its evaluation of a judicial nominee unless the Administration has not consulted with both home state Senators prior to submitting the nomination to the Senate. If such good faith consultation has not taken place, the Judiciary Committee will treat the return of a negative blue slip by a home state Senator as dispositive and the nominee will not be considered.6
When Republicans gained a majority in the Senate in 1995 and Senator Hatch became Chairman, he enclosed the Biden letter in his February 3, 1995 letter to White House Counsel Abner Mikva. He made it clear that his policy would be the "Biden Policy" until he articulated a new one.
In 1997, still relying on the Biden Policy, Chairman Hatch articulated more detail about his blue slip policy. Expressing concern about the level of consultation between the White House and Senate Republicans, he defined what would constitute the "good faith consultation" necessary for a nominee to be considered by the Committee. He wrote that the circumstances demonstrating an absence of such consultation would include:
- failure to give serious consideration to individuals proposed by home state Senators as possible nominees;
- failure to identify to home state Senators and the Judiciary Committee an individual the President is considering nominating with enough time to allow the Senator to provide meaningful feedback before any formal clearance (i.e., by the ABA or FBI) on the prospective nominee is initiated;
- after having identified the name of the individual the President is considering nominating, failure to (a) seek a home state Senator's feedback, including any objections the Senator may have to the prospective nominee, at least two weeks before any formal clearances are initiated; and (b) give that feedback serious consideration;
- failure to notify a home state Senator, and the Judiciary Committee, that formal clearance on a prospective nominee is being initiated despite the Senator's objections; and
- failure to notify home state Senators, and the Judiciary Committee, before a nomination is actually made, that the President will nominate an individual.7
Senator Hatch also added new wording to the blue slip: "No further proceedings on this nomination will be scheduled until both blue slips have been returned by the nominee's home- state Senators."
The "re-defined" policy and the revised blue slip document were used to ensure that nominees would not be given a hearing unless two positive blue slips were returned. Coupled with individual Senators' requests to "hold" a nomination indefinitely, Senate Republicans quietly slowed or stopped the confirmation of nominees. Brannon Denning, an Assistant Professor of Law at Southern Illinois University, writes:
After 1994, for example, when Republicans regained control of the House and the Senate, senators used the power of the committee chairman and the "hold" to kill nominations for cabinet positions, department heads, ambassadorships, and judgeships on what seemed to be an unprecedented scale.8
Blue Slips and Ideology: the Fourth Circuit
The Fourth Circuit, which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia, is viewed by many as the most conservative federal appellate court in the country. It is also the circuit with the highest percentage of African Americans in the country. In recent years, the Fourth Circuit also has developed a reputation as an activist and very ideological court. As Deborah Sontag has written:
The Fourth Circuit is the appellate court closest in thinking to the Rehnquist Court. But the relationship is symbiotic: the Fourth Circuit does not just imitate; it also initiates. It pushes the envelope, testing the boundaries of conservative doctrine in the area of, say, reasserting states rights over big government . . . .
[W]hen it comes to high-profile decisions, the Fourth Circuit tends to divide neatly along party lines. And taken together, those decisions not only bespeak a conservative philosophy of law but also serve a conservative political agenda.9
While four of President Clinton's nominees to the Fourth Circuit were confirmed without great difficulty (two when Democrats controlled the Senate majority and one, William B. Traxler, who was first recommended by Senator Strom Thurmond, R-S.C., to President George H.W. Bush, in 1998), the real battle began when Clinton tried to integrate the Fourth Circuit.10 President Clinton tried four times to name an African-American to the Fourth Circuit. On each occasion, then—Senator Jesse Helms, R-N.C., blocked the nomination by failing to return his "blue slip." According to Sontag, "Helms still bore a grudge from Clinton's failure to re-nominate his former aide Terrence Boyle, after Boyle's nomination by the first Bush had elapsed."
During this period of obstructionism, Senator Helms insisted that the matter had nothing to do with race or politics. Instead, he argued that it would be a waste of taxpayer money to fill vacancies on the Fourth Circuit when the chief judge, Harvey Wilkinson, a strident and ideological conservative on the court, asserted that the court would function less efficiently if it were bigger.11 Judge Wilkinson provided testimony on this question to the Senate Judiciary Subcommittee on Administrative Oversight and the Courts on February 5, 1997. The Subcommittee hearing was convened in response to two existing vacancies and the possibility that the Judicial Conference would recommend additional seats for the Court.
Judge Sam Ervin—an active judge on the circuit and chief judge from February 1989 until February 1996—disagreed with Judge Wilkinson's assessment. He testified at the hearing, "[m]y appearance here today, though, is necessitated by Chief Judge Wilkinson's proposal that we do not need to fill the 2 judicial vacancies that presently exist in our circuit, and it is my conviction that our failure to do so would be a serious mistake." 12
Although Judge Wilkinson did not testify on behalf of the Fourth Circuit, conservatives used his testimony to defend their resistance to confirming President Clinton's nominees. Senator Helms went so far as to introduce federal legislation to eliminate the two vacant judgeships on the Fourth Circuit.13
Blue Slips and Ideology: the Sixth Circuit
Senate Republicans also utilized the "blue slip" policy to block the confirmation of two Clinton nominees to the Sixth Circuit—Helene White and Kathleen McCree Lewis.
Helene White was nominated on January 7, 1997, after Judge Damon Keith assumed senior status. Senator Carl Levin, D-Mich., returned his blue slip on Judge White's nomination, while then—Senator Spencer Abraham, R-Mich., did not. Senator Abraham's blue slip remained unreturned and the 105th Congress ended without a hearing for Judge White.
On January 26, 1999, President Clinton again submitted Judge White's nomination. Senator Abraham again failed to return his blue slip, and therefore no hearing was held on the nomination. According to Senator Levin's July 2003 testimony before the Judiciary Committee:
The exercise of the blue slip power by Senator Abraham was clearly motivated during this period by his repeated efforts to obtain the nomination by President Clinton of Jerry Rosen, a district court judge in the Eastern District of Michigan, for Judge Kennedy's [now vacant] seat. However, on September 16, 1999, President Clinton decided to nominate Kathleen McCree Lewis to that seat.
On March 20, 2000, the Chief Judge of the Sixth Circuit, Boyce F. Martin, Jr., sent a letter to Chairman Hatch expressing concerns about an alleged statement from a member of the Judiciary Committee that "due to partisan considerations," there would be no more hearings or votes on vacancies for the Sixth Circuit during the Clinton administration. Finally, on April 13, 2000, Senator Abraham returned his blue slips for Judge White and Lewis, without indicating his approval or disapproval. Nevertheless, no hearing was ever held for either nominee.
In the end, Judge White's nomination was pending for more than four years—the longest period of time any circuit court nominee has waited for a hearing in the history of the Senate. Lewis's nomination was pending for more than a year and a half.14
Problems on the Senate Floor: the Nominations of Marsha Berzon, Richard Paez, and Ronnie White
Favorable reporting by the Senate Judiciary Committee was not synonymous with smooth sailing on the Senate floor. Once in line for consideration by the full Senate, many nominees faced another round of anonymous holds and delaying tactics that slowed—or stopped—their confirmation. Three of the most disturbing cases are those of Marsha Berzon, Richard Paez, and Ronnie White.
Marsha Berzon: Nominee to the Ninth Circuit
Marsha Berzon is often described as one of the nation's brightest legal minds. As a nationally known appellate litigator with a highly regarded San Francisco law firm, she wrote more than 100 briefs and petitions to the Supreme Court, and argued four cases there. Revered by her clients and respected by her opponents, Senator Hatch once commented that Marsha Berzon, "is one of the best lawyers I've ever seen."
Judge Berzon was first nominated to serve on the Ninth Circuit on January 27, 1998. On September 21, 1999, after her nomination had been pending for more than a year, an attempt to bring Judge Berzon's nomination to a vote before the full Senate was thwarted by a Republican filibuster. The filibuster was supported by 54 Republicans (all except Senator John McCain, R-Ariz., voted in favor), including Senators Hatch and the current Senate Majority Leader, Bill Frist, R-Tenn. It would take another six months for the Senate to break the filibuster and confirm Berzon's nomination by a vote of 64 to 34.
Richard Paez: Nominee to the Ninth Circuit
Ninth Circuit nominee Richard Paez received similar treatment by Senate Republicans. Despite a distinguished career on the district court and the conclusion by the Los Angeles Daily Journal that Judge Paez was a thoughtful, unbiased, and even tempered judge, it took three years for the Judiciary Committee to vote on his nomination.
The first attempt to consider Paez's nomination on the floor of the Senate was rejected by a Republican filibuster in September 1999. Fifty-three Republicans, including Senators Hatch and Frist, voted in support of the filibuster, therefore denying a vote on Judge Paez's nomination.
Another six months would pass before the Senate again turned to Judge Paez's nomination. On March 8, 2000, Senate Democrats finally succeeded in breaking the filibuster, thus paving the way for a floor vote. However, the following day, conservative Republicans moved to indefinitely postpone consideration of the nomination. This motion was rejected, although 31 Republicans supported it, including Senator Frist. Judge Paez was finally confirmed by a vote of 59 to 39—more than four years after his nomination.
Ronnie White: Nominee to the Eastern District of Missouri
Though the Berzon and Paez confirmations were unnecessarily protracted and damaging, the Senate Republicans' treatment of Justice Ronnie White is one of the Senate's most disturbing moments. Justice White's record was distorted beyond recognition, and Senate rules were used to delay his confirmation until then-Senator John Ashcroft, R-Mo., corralled enough of his colleagues to defeat it.
Ronnie White, the first African American to sit on the Missouri Supreme Court, was nominated to Missouri's highest court by then-Governor Mel Carnahan and was twice nominated by President Clinton to serve on the District Court for the Eastern District of Missouri. At Justice White's first confirmation hearing, in the summer of 1998, Senator Ashcroft focused his questioning on partial-birth abortion, gay rights, random drug checkpoints, and the role of the legislature versus the judiciary. Only in subsequent written questions did he ask Justice White about the death penalty.
A year later, Governor Carnahan announced that he would run for the Senate in 2000 and the death penalty became an issue in the campaign. In the summer of 1999, Ashcroft began characterizing Justice White as "an activist with a slant toward criminals," a judge with "a serious bias against a willingness to impose the death penalty," and someone who seeks "at every turn" to provide opportunities for the guilty to "escape punishment." In a column appearing in the St. Louis Post Dispatch on August 18, 1999, Ashcroft claimed, "White voted to reverse the death sentence in more cases than any other (Missouri) Supreme Court judge." This was not true. In fact, four of six Ashcroft appointees serving on the Supreme Court have voted to overturn more death penalty convictions than Justice White.
Ashcroft repeatedly said he was reacting to concerns about Justice White voiced by Missouri law enforcement officials. In reality, it was Ashcroft who approached the law enforcement community seeking to instigate opposition. His efforts met with mixed results. The Missouri Sheriffs' Association did oppose Justice White based on his vote to overturn a death penalty conviction in a case involving the murder of three law enforcement officers and the wife of a county sheriff. The sheriff whose wife was murdered circulated a petition among sheriffs' department officials urging that "consideration be given to this dissenting opinion (by Justice White) as a factor in the appointment to fill this position of U.S. District Judge." The nomination was also opposed by the Missouri Federation of Police Chiefs and by some county prosecutors.
However, many in the law enforcement community supported Justice White. The State Fraternal Order of Police issued a statement expressing "great consternation" at the opposition from the Sheriffs' Association. The FOP said "The record of Justice White is one of a jurist whose record on the death penalty has been far more supportive of the rights of victims than the rights of criminals." Justice White was endorsed by the Chief of the St. Louis Metropolitan Police Department, and the President of the Missouri Police Chiefs Association described him as "an upright, fine individual" and said he had "a hard time seeing that he's against law enforcement."
"Armed with a few law enforcement letters opposing Justice White's confirmation, Senator Ashcroft appealed to his Republican colleagues and—without notice or warning to the Democratic leaders—the caucus voted in lock—step to unanimously oppose Justice White's confirmation. The distortion of Justice White's record and the unfairness leveled against him by the Republican caucus led The Washington Post to call on President Bush to re-nominate Justice White when Bush assumed office in 2001.
The Numbers Tell the Story
The Berzon, Paez, and White confirmation battles are representative of the organized attack on President Clinton's judicial nominees by his political opponents. Senate Republicans and their allies recognized that if they slowed the process, they could undermine it and preserve judicial vacancies for the nominees of a hoped—for conservative President. Indeed, former Majority Leader Trent Lott, R-Miss., was quite clear in 1998 when he said, "[s]hould we take our time on these federal judges?" Lott asked rhetorically. "Yes. Do I have any apologies? Only one: I probably moved too many already." 15
The statistics tell the story. During the first Bush administration—with a Democratic Senate—it took only 77 days for an appeals court nominee to receive a hearing. It took 81 days during President Clinton's first term. Clinton nominees waited considerably longer when Republicans controlled the Senate-an average of 231 days during 1997, 98 days in 1999, and 247 days in 2000. If Chairman Hatch had convened more hearings, the wait would have been shorter. The Judiciary Committee only had 11 hearings in 1998, seven in 1999, and eight in 2000. Some nominees never had a hearing, including Enrique Moreno to the Fifth Circuit, Elena Kagan to the D.C. Circuit, James Wynn to the Fourth Circuit, and Helene White to the Sixth
Given those statistics, it is not surprising that when the Senate was under Republican control, 45.3 percent of President Clinton's appellate court nominees were returned to the White House—a rate 72 percent higher than the 26.3 percent return rate for Presidents Reagan and Bush when Democrats controlled the Senate.16 And because the Republicans refused to confirm so many Clinton nominees, at the end of the Clinton administration, there were 81 judicial vacancies —26 on the courts of appeal — and 63 Clinton nominees never had a hearing or a vote in the Judiciary Committee.