COLUMBUS, Ohio -- A new study suggests that U.S. Senate confirmation of federal judges has slowed to an unprecedented pace, contributing to a shortage of judges in federal courts.
The hostile political environment between President Bill Clinton, who nominates judges, and the Republican-controlled Senate, which confirms them, is the major reason for the delay, said Elliot Slotnick, co-author of the study and professor of political science at Ohio State University.
While friction in divided governments is common, the current situation in confirming judges is worse than usual, Slotnick said.
A case in point: The study found that the 1992 Democrat-controlled Senate took an average of 92 days to hold hearings on Republican President George Bush's nominations for district judges. But last year the Republican Senate took an average of 160 days to hold hearings on Clinton's nominees, Slotnick said.
"The Senate hasn't completely stopped acting on judicial nominations, but there seems to be a crisis of unprecedented delays in moving the nominations along," he said.
Slotnick conducted the study with Sheldon Goldman, professor of political science at the University of Massachusetts, Amherst. Their results were published in the current issue of the journal Judicature.
Slotnick said the delays don't seem to be because Clinton is nominating people that are too liberal to be confirmed by Senate Republicans. In fact, Clinton has been very pragmatic, he said, in nominating moderates -- even a limited number of Republicans -- to the federal bench. This tendency has increased in Clinton's second term. For example, the study found that the proportion of Republicans Clinton appointed during the first half of his second term was about triple that of his first term.
This suggests that the Clinton administration, to a limited extent, felt obliged to accommodate some Republican senators, an inevitable bowing to the reality of a Republican stranglehold on the confirmation process," Slotnick said.
Clinton has also nominated a higher proportion of judges who have received the American Bar Association's highest rating than did Presidents Bush, Reagan or Carter, the study showed.
Clinton's nominations have actually disappointed many left-leaning Democrats who believe he should be pursuing a more liberal agenda in lower-court nominations, he said. "In interviews I have done, Clinton administration officials admitted there has been, on occasion, a cost-benefit calculation when deciding whom to nominate to the federal bench," Slotnick said. "They consider whether a particular person could be confirmed by the Senate, and if so, at what cost. They are making some very pragmatic choices."
The current battle between Clinton and Senate Republicans is the result, in part, of "the politicization of lower court judgeships that has occurred over the past several decades," Slotnick explained. Richard Nixon made judgeships an issue by seeking out demonstrably conservative candidates as part of his campaign to restore "law and order" in the country. Jimmy Carter raised the issue as well by stating, from a liberal perspective, that he would not nominate judges unless they had a "demonstrated commitment to equal justice." Ronald Reagan got attention by screening judicial candidates for their specific views on a variety of social issues, particularly abortion.
"Until relatively recently, however, the presumption had always been that the president nominates lower-court judges and, barring some significant red flag issue, Senate confirmation was routine," Slotnick said. "That no longer seems to be the case."
Despite his problems with the Senate, Clinton has left his mark on the federal judiciary by dramatically increasing the number of women and minority judges. The study found there has been a 55 percent increase in the number of these nontraditional federal judges since Clinton took office. About 3 of 10 judges on the federal bench in the beginning of 1999 were women or minorities, an increase from about 1 in 5 when Clinton took office.
However, Slotnick said, the bottleneck in confirming judges has become the biggest remaining issue for Clinton in terms of his judicial impact. More importantly, the delays are causing serious problems in administering justice.
"There are federal district and circuit courts with incredible delays because of the number of judicial vacancies," he said. "Many of these vacancies are for judgeships for which there are people nominated, but not yet confirmed. It's not a good situation," Slotnick said.