According to Article II, Section 2, of the US Constitution, federal judges (i.e., “Officers of the United States”) are appointed by presidential nomination “with the advice and consent of the Senate.” The Senate gives (or withholds) its “advice and consent” through the confirmation process. It holds hearings on nominees’ qualifications and then votes yea or nay. It is key to the independence of the federal judiciary that, once appointed, a judge serves, in effect, “for life”—that is, until death or retirement (or, rarely, impeachment for bad “behavior”). It is thus the president’s job to appoint new judges to fill vacancies on the federal bench, and the Senate’s to confirm them. What could be simpler?
Because federal judges do not have to stand for election, they are, in theory, independent even of the president who nominates them. But presidents carefully select the judges they nominate in hopes of putting their own ideological stamp on the makeup of the judiciary. And in an age of judicial activism, the importance of a position on the federal bench has grown significantly. The rulings of federal judges have set policy in areas once considered the exclusive domain of the executive or legislative branches. For this reason, the judicial confirmation process has become more intensely politicized.
The Democratic-controlled Senate has failed to move many of President Obama’s judicial nominations to a confirmation vote. The main cause for delays, Democrats say, is “Republican obstructionism”—in much the same way that Republicans complained of “Democratic obstructionism” in regard to judicial confirmations when they were in control of the Senate. Lately, the entire process has slowed to a glacial pace. The time from nomination to confirmation vote is longer than ever. Some observers call the process dysfunctional or broken. Although the courts continue to function even with vacancies, there are negative consequences for the operation of the judicial branch. Currently one in ten judgeships is unfilled, leaving fewer judges to handle the caseload.
Image credit: ã Photodisc/Getty Images
Related Links
- As Obama, Senate Collide, Courts Caught Short
This article highlights the consequences of the US Senate’s slowness in approving nominees due to gridlock and partisanship; includes graphs on vacancies and nominees’ wait times.
(Source: Boston Globe, March 10, 2013) - Evaluating Judicial Nominees
In this analysis by a conservative federal judge, the slow pace of confirmations in the Senate is explained by the rise in judicial activism.
(Source: Engage 8, no. 3, 2007) - Charts: Look at How Badly Obama Lags on Judicial Appointments
This article presents data on the delays in the Senate confirmation process in graphic form.
(Source: Mother Jones, April 4, 2013) - Federal Judicial Vacancies
This site includes a map showing US federal court districts and their vacancies, a list of all pending nominees, and a wealth of statistics on nominations under the three most recent US presidents.
(Source: American Constitutional Society, April 30, 2013)
