The process of filling openings on the federal bench is dragging on longer than ever, and both the White House and the Senate--as well as both political parties--are to blame, a bipartisan report concludes.
The average number of days it takes a president to nominate a judge for the federal courts has increased steadily from 240 for President Jimmy Carter to 315 for President Clinton through the end of last year, according to the report, released yesterday by Citizens for Independent Courts.
The average number of days it takes the Senate to confirm federal judges also has increased dramatically, according to the report, from 38 during the 95th Congress in 1977-78 to 201 during the 105th Congress in 1997-98.
"It's taking longer and longer to nominate judges and longer and longer to confirm them, and we think that's a real problem for the federal judicial system," said Mickey Edwards, a former Republican congressman from Oklahoma and co-chairman of Citizens for Independent Courts, which is part of the Constitution Project.
Edwards's co-chairman is Lloyd Cutler, a former White House counsel for President Clinton.
The report also found that it takes the Senate longer on average to confirm female nominees than to confirm men. In the 105th Congress, for example, male nominees were acted on in an average of 184 days, compared with 249 days for female nominees. Citizens for Independent Courts, however, did not eliminate individual variables and made no conclusions about the phenomenon, suggesting instead that the executive and legislative branches study it to ensure that no sex bias exists.
The group also made no attempt to assign blame to Republicans or Democrats for being the worse offenders in gumming up the process. The only clear culprits appeared to be presidential election cycles and years of divided government, during which one party controls the White House and the other the Senate.
During the 99th Congress in 1985-86, for instance, when Ronald Reagan was in the White House and Republicans controlled the Senate, nominations were dispatched in a crisp 45 days on average.
After Democrats took back the Senate, however, with Reagan still president, the average time skyrocketed. During the 100th Congress in 1987-88, a presidential election cycle during which the Iran-contra investigation dominated attention, it took the Senate an average of 144 days to act on judicial nominations.
"There is enough blame to go around for everybody," Cutler said. "What we're trying to concentrate on is whether the system could be improved, and whether the public, and the whole principle of independent rendering of justice, would be better served if the selection of federal judges, nomination and confirmation, were speeded up."
Edwards and Cutler acknowledged that the nomination and confirmation process is properly a political one and should remain so. But they also made several recommendations for speeding things up. They said that the executive branch should better prepare for anticipated vacancies and should devote more staff resources to nominations and confirmations, and that the Senate should eliminate the practice of allowing individual senators to delay a vote, often for unrelated legislative reasons, by placing a "hold" on a nominee.
The report also condemns the practice of asking prospective judges how they would rule on specific cases likely to come before them. Questions of character, qualifications and general legal outlook are fair game, according to the report.
It's taking longer for presidents to nominate federal judges and for the Senate to confirm them, according to a Constitution Project study.
Average number of days. . .
. . . for president to nominate
Carter ('77-'81) 240
Reagan ('81-'89) 254
Bush ('89-'93) 296
Clinton ('93-'98) 315
. . . for Senate to confirm
99th ('85-'86) 45
100th ('87-'88) 144
101st ('89-'90) 78
102nd ('91-'92) 138
103rd ('93-'94) 83
104th ('95-'96) 159
105th ('97-'98) 201
CAPTION: "There is enough blame to go around," said Lloyd Cutler.