Order Code RL33094
CRS Report for Congress
Received through the CRS Web
Congress and the Courts: Current Policy Issues
September 20, 2005
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Congress and the Courts: Current Policy Issues
Federal courts, like Congress and the presidency, are important forums for
resolving the political, economic, and social conflicts that characterize American
society. From the beginnings of the republic, when federal courts handed down
decisions that strengthened the national government, to many of today’s most hotly
debated issues — affirmative action, war powers, racial redistricting, and abortion
— federal judges have been at the storm center of numerous controversies.
The American constitutional system of separate institutions sharing power
inevitably produces tension between Congress and the courts. Conflicts between
Congress and federal courts are common when the elective branches are called to
account by decisions of the nonelective judicial branch, composed of judges with
The purposes of this report are to examine the Congress-court connection along
several discrete, but overlapping, dimensions. First, the constitutional authority of
Congress and the judiciary is summarized briefly. Second, the report highlights the
court’s role as legislative-executive “umpire” and federal-state “referee” in our
constitutional system. Third, the report discusses the court’s part in statutory
interpretation as well as the diverse ways Congress may “check and balance” the
judiciary. Fourth, the paper reviews several current controversies associated with the
judicial nominations process. Fifth, the state of play with respect to the so-called
“nuclear” or “constitutional” option for ending judicial filibusters is discussed along
with the compromise that so far has averted use of this procedural maneuver in the
Senate. Finally, the report closes with several observations about the judicial
nominations process. This report will not be updated.
Constitutional Authority: Broad Features . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Judicial Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Checks and Balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Court as Referee and Umpire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Referee Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Umpire Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Terrorist Threat and Federalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Statutory Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Role of Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Legislative Checks on the Judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Constitutional Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Withdrawal of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Impeachment of Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Size, Procedure, and Pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Advice and Consent - Judicial Nominees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Norms and Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Nomination Struggles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Circuit Court Battles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Other Contemporary Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
A New Judicial Front Opens: The “Nuclear” or “Constitutional” Option . . . . . 32
A Procedural Scenario . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Some Implications and Possible Consequences . . . . . . . . . . . . . . . . . . . . . . 35
Negotiations End An Impasse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
The Bipartisan Agreement: A Memorandum of Understanding . . . . . . . . . 39
Diverse Definitions of “Extraordinary Circumstances” . . . . . . . . . . . . . . . . 41
Summary Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Wider Recognition of the Judiciary’s Influential Role . . . . . . . . . . . . . . . . 43
Heightened Partisanship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Split Party Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Larger Interest Group Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Legislative-Judicial Misunderstandings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Constitutional Ambiguities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Congress and the Courts:
Current Policy Issues
Federal courts, like Congress and the presidency, are important forums for
resolving the political, economic, and social conflicts that characterize American
society. “Scarcely any political question arises in the United States that is not
resolved, sooner or later, into a judicial one,” wrote the famous French chronicler
Alexis de Tocqueville in Democracy in America, his classic 1835 study of early
American life.1 From the beginnings of the republic, when federal courts handed
down decisions that strengthened the national government, to many of today’s most
hotly debated issues — affirmative action, war powers, racial redistricting, and
abortion — federal judges have been at the storm center of numerous controversies.
Bolstered by its prerogative of judicial review, as asserted by the Supreme
Court in the landmark case of Marbury v. Madison (1803) — and the public’s
perception that the highest court is the primary, but not exclusive, interpreter of the
Constitution — federal jurists regularly pass judgment on the compelling issues that
confront the nation.2 Meanwhile, Congress and the White House also interpret the
Constitution. As the Supreme Court stated in United States v. Nixon (1974): “In the
performance of assigned constitutional duties each branch of the Government must
initially interpret the Constitution, and the interpretation of its powers by any branch
is due great respect from the others.”3
The American constitutional system of separate institutions sharing power
inevitably produces tension between Congress and the courts. While the framers
outlined the structure and authority of Congress in some detail in Article I, little by
comparison is in Article III dealing with the courts. Thus, the beginnings of the court
owe less to constitutional mandates and more to legislation establishing its structure
(the Judiciary Act of 1789, for example) and to the rulings of the early justices, such
as Chief Justice John Marshall (1801-1835). As a noted legal scholar explained:
Congress was created nearly full blown by the Constitution itself. The vast
possibilities of the presidency were relatively easy to perceive and soon,
inevitably materialized. But the institution of the judiciary needed to be
summoned up out of the constitutional vapors, shaped and maintained. And the
Alexis de Tocqueville, Democracy in America (New York: American Library, 1956), p.
Richard L. Pacelle, Jr., The Role of the Supreme Court in American Politics: The Least
Dangerous Branch? (Boulder, CO.: Westview Press, 2001). See Marbury v. Madison, 1
Cranch 137 (1803).
United States v. Nixon, 418 U.S. 683 (1974).
Great Chief Justice, John Marshall — not single-handed, but first and foremost— was there to do it and did.4
These early jurists rebuffed challenges to judicial power and conclusively established
the Court’s right to determine the constitutionality of acts of Congress.
Conflicts between Congress and federal courts are common when the elective
branches are called to account by decisions of the nonelective judicial branch,
composed of judges with lifetime tenure. A famous instance occurred during the New
Deal when the Supreme Court arguably acted as a super-legislature, making policy
through its judicial interpretations, invalidating 13 acts of Congress in one term
(1935-1936). So frustrated was President Franklin D. Roosevelt that he tried in 1937
to have Congress pass legislation expanding the size of the Court so he could
nominate judges more sympathetic to his New Deal program. Widespread legislative
and public opposition to the so-called court-packing plan led to a huge defeat for
Roosevelt. Nonetheless, sensitive to the economic and social problems (joblessness,
dislocation, and so on) affecting the country, the Court soon began to shift its attitude
in constitutional interpretation. For example, the Court handed down a decision in
1937 upholding a minimum wage law that only a few months earlier it had ruled
unconstitutional.5 This turnabout by the Court, ending its penchant for limiting
congressional power, was, as a wit of the period put it, “the switch in time that saved
The purposes of this report are to examine the Congress-court connection along
several discrete, but overlapping, dimensions. First, the constitutional authority of
Congress and the judiciary is summarized briefly. Second, the report highlights the
court’s role as legislative-executive “umpire” and federal-state “referee” in our
constitutional system. Third, the report discusses the court’s part in statutory
interpretation as well as the diverse ways Congress may “check and balance” the
judiciary. Fourth, the paper reviews several current controversies associated with the
judicial nominations process. Fifth, the state of play with respect to the so-called
“nuclear” or “constitutional” option for ending judicial filibusters is discussed along
with the compromise that so far has averted use of this procedural maneuver in the
Senate. Finally, the report closes with several observations about the current judicial
Alexander Bickel, The Least Dangerous Branch (Indianapolis, IN: Bobbs-Merrill, 1962),
Dexter Perkins and Glyndon Van Deusen, The United States of America: A History, vol.
II (New York: Macmillan and Co., 1962), pp. 560-566.
The Court started to shift its views on Roosevelt’s policies even before the court-packing
plan. The Senate Judiciary Committee adversely reported FDR’s plan and rejected it in
strong terms. See Louis Fisher, American Constitutional Law, 6th ed. (Durham, NC:
Carolina Academic Press, 2005), pp. 1032-1033.
Constitutional Authority: Broad Features
Whether it is enacting minimum wage, health, or other laws, Congress derives
its policymaking authority from two key parts of the Constitution: Article I and the
Fourteenth Amendment. Article I, Section 8, grants Congress the right to legislate
in a number of specific areas, such as laying and collecting taxes, coining money, and
raising and supporting armies. In addition, an elastic clause gives Congress the
authority to “make all laws which shall be necessary and proper” to carry out its
Under the post-Civil War Fourteenth Amendment, no state shall deny any
person of life, liberty, or property without due process of law or the equal protection
of the laws. The amendment provides that Congress “shall have the power to enforce
[these provisions], by appropriate legislation.” Congress, as the courts have noted,
also has “implied” or “inherent” powers not specifically mentioned in the
Constitution, such as its right to conduct investigations as an adjunct to its
lawmaking function. Federal courts, however, can impose constraints on the exercise
of these constitutional pillars of legislative authority.7
As for the courts, Article III of the Constitution states: “[T]he judicial power of
the United States shall be vested in one Supreme Court, and in such inferior courts
as the Congress may from time to time ordain and establish.” Left to Congress was
the establishment of the elaborate judicial structure of district and circuit courts of
appeals that exist today, not to mention the legislature’s authority to create a number
of specialized courts, such as bankruptcy and tax courts, where judges serve fixed
terms. The Constitution also specifies the “cases and controversies” over which the
court has original jurisdiction, such as issues involving the Constitution, federal law,
and treaties. In addition, the Supreme Court has appellate jurisdiction (the authority
to review cases on appeal) under the Constitution but with such exceptions as
Congress may determine. The President’s appointment of judges to the federal courts
is subject to the “advice and consent” of the Senate. Basically, these provisions
define the core authorities and limitations of the federal judiciary.
The judiciary’s role is carried out in three main ways. First, its interpretive
decisions can uphold or broaden the legislative powers of Congress. “Congress acted
within its authority,” said Supreme Court Justice Ruth Bader Ginsburg, who agreed
with a Court decision upholding a 1998 law further extending copyright privileges
for authors, artists, and inventors, such as commercial artist Walt Disney, who
created the world-famous animated cartoon character Mickey Mouse.8 Second, it can
check overreaching by the Congress through its implied power of judicial review.
For an authoritative and comprehensive analysis and interpretation of the Constitution, see
Johnny H. Killian, George A. Costello, and Kenneth R. Thomas, eds., The Constitution of
the United States of America: Analysis and Interpretation (Washington: GPO, 2004).
Joan Biskupic, “Justices Defer to ‘Congress’ Power to Extend Copyright,” USA Today,
Jan. 16, 2003, p. 4A.
Third, and equally significant, the Supreme Court can act as a policymaking catalyst,
especially when the House or Senate is stymied in making decisions.
The landmark civil rights case of Brown v. Board of Education (1954) is a
classic example.9 The decision struck down the separate but equal doctrine
upholding state laws that permitted racially segregated public schools. Until this
decision, majorities in the Senate could not enact civil rights bills because of
filibusters conducted by southern Senators. The Brown case galvanized Congress to
enact the Civil Rights Act of 1957, the first civil rights law since 1875. “The genius
of a system of divided powers,” wrote a law professor, “is that when one branch is
closed to the desires of the populace or the demands of justice, another may open
up.”10 The Brown decision had little immediate effect on the enactment of new antidiscrimination laws until Congress — responding to large-scale civil rights
demonstrations — began to pass landmark legislation, such as the Civil Rights Act
of 1964 prohibiting racial discrimination in public accommodations.11
Checks and Balances
Each national branch of government has the constitutional wherewithal to
influence the others. The Supreme Court affects Congress “whenever justices
interpret the meaning of the Constitution, treaties, federal statutes, administrative
[rules and regulations], and the decisions of [lower] federal and state courts.”12 In
turn, Congress has the authority to affect the size, funding, and jurisdiction of federal
courts, and the Senate alone is directed under the Constitution to approve or reject
court nominees chosen by the chief executive. Federal courts issue rulings but they
depend on the political branches to enforce those decisions. Alexander Hamilton, in
distinguishing judicial power from legislative or executive power, wrote in The
Federalist No. 78: The judiciary “has no influence over either the sword [the
president] or the purse [Congress] ... and can take no active resolution whatever. It
may truly be said to have neither Force nor Will, but merely judgment.”13
Brown v. Board of Education, 347 U.S. 483 (1954).
Jamin Raskin, “Courts v. Citizens,” The American Prospect, vol. 14 , March 2003, p. A25.
Some law professors and political scientists suggest that courts “rarely mount serious
challenges to the preferences of political majorities. As Stanford Law Dean Larry Kramer
put it, ‘There is now a general consensus among social scientists that courts have not been
a strong or consistent counter-majoritarian force in American politics.’ In other words,
Supreme Court decisions are more of a mirror than a catalyst, reflecting public opinion far
more than they shift it.” See Rosa Brooks, “A Court That Nudges More Than It Leads,” Los
Angeles Times, July 20, 2005, p. A15.
Colton C. Campbell, Jr. and John F. Stack, Jr., “Diverging Perspectives on Lawmaking:
The Delicate Balance Between Congress and the Court,” in Colton C. Campbell, Jr. and
John F. Stack, Jr., eds., Congress Confronts the Court (Lanham, MD.: Rowman and
Littlefield, 2001), p. 2.
Typically, when the Supreme Court rules an Act of Congress unconstitutional, the result
is that the act is no longer enforced by the President, and Congress, if it wishes to promote
the policy of the nullified act, drafts new legislation without features that the Court is likely
Nevertheless, federal courts have issued many rulings that require large financial
expenditures in areas such as improvements in prison conditions and mental health
institutions. In the area of war, contemporary Presidents have taken military action
either with or without authority from Congress. Important functions of federal courts
in the military arena are to check presidential power and to adjudicate the proper
allocation of war-making authority between Congress and the White House.
The Court as Referee and Umpire
The Referee Role
The Supreme Court serves as both referee between the two national elective
branches and as the umpire of federal-state relations. Ever since the Court claimed
the power of judicial review in 1803 and struck down an act of Congress, it has
considered a large number of separation of power issues, most notably during the
New Deal and in the past few decades. Super-legislature, or legislating from the
bench (the charge of judicial activism), is an oft-repeated epithet. In general, judicial
activism means one of several things: the willingness of judges to invalidate
decisions of the elective branches or officials; “to make up the meaning of the
Constitution or of a statute to realize their policy preferences;” or to “overturn
precedent” (the doctrine of stare decisis) to suit their personal views.14
Someone’s view of activism, however, often depends on whether he or she
supports the direction of the court. Decisions that expand Congress’s authority to
legislate may be opposed by those who prefer matters to be handled by the states.
Conversely, decisions that restrict the reach of the legislative branch are likely to be
opposed by those who favor a national approach to problems. Criticism has been
lodged against judicial activism by the Rehnquist Court. “In its first seventy-five
years, the Supreme Court struck down only two acts of Congress,” wrote law
professor Cass Sunstein. “In the eighteen years since Ronald Reagan nominated
to strike down. When the Court declares an executive branch action unconstitutional, the
executive has commonly acquiesced to the Court, ceasing to engage in the action at issue.
Vikram Amar, “‘Legislating From the Bench’: It’s A Matter of Opinion,” Los Angeles
Times, June 26, 2005, p. A19 See Paul Gewirtz and Chad Golder, “So Who Are the
Activists?” New York Times, July 6, 2005, p. A23. Former Senator Sam Ervin said a judicial
activist is “a judge who interprets the Constitution to mean what it would have said if he,
instead of the founding fathers, had written it.” See Douglas W. Kmiec, “Judges: The Law
Is the Law,” Los Angeles Times, June 26, 2005, p. A24. Stare decisis, according to Supreme
Court Justice John Paul Stevens, suggests that judges should “decide like cases in the same
way,” which “increases the likelihood that judges will in fact administer justice impartially
and that they will be perceived to be doing so.” See John Paul Stevens, “The Life Span of
a Judge-Made Rule,” in Norman Dorsen, ed., The Evolving Constitution (Middletown, CT.:
Wesleyan University Press, 1987), pp. 196-197.
William H. Rehnquist as chief justice, the Court has invalidated more than three
A 1983 Supreme Court decision — Immigration and Naturalization Service v.
Chadha — invalidated many more laws than three dozen. Chadha also demonstrates
how the legislative and executive branches can achieve workable accommodations
in the aftermath of a major Court ruling. Chadha declared many forms of the
legislative (or congressional) veto unconstitutional. A legislative veto is a statutory
enactment that permits Presidents and agencies to take certain actions, subject to later
approval or disapproval by one or both houses, including designated committees of
each chamber. With unelected executive officials necessarily involved in the
complexities of modern policymaking, Congress has little choice but to delegate
authority to administrative entities to craft the rules, regulations, and policies required
to implement various laws. Congress may, however, attach “strings” to such
delegated authority, such as the legislative veto.
In Chadha, the Court held that the legislative veto violated the separation of
powers, the principle of bicameralism, and the Presentation Clause of the
Constitution (legislation passed by both chambers must be presented to the President
for his signature or veto.) The decision, wrote Justice Byron R. White in a vigorous
dissent, “strikes down in one fell swoop provisions in more laws [nearly 200] enacted
by Congress than the court has cumulatively invalidated in its entire history.”16
Congress repealed some legislative vetoes, amended others, and employed its
wide range of oversight techniques to monitor executive actions. Yet, despite the
Chadha decision, legislative vetoes — many requiring an agency to seek the approval
of specific House or Senate committees before implementing an agency decision —
continue to be enacted into law (more than 400 by the end of 2004).17 The
legislature and executive each recognize their value — the executive wants to receive
delegated authority and Congress wants to retain some control over that authority
short of passing another law.
Are they constitutional? Not by the Court’s definition. Will that fact change the
behavior between committees and agencies? Probably not. An agency might
advise the committee: “As you know, the requirement in this statute for
committee prior-approval is unconstitutional under the court’s test.” Perhaps
agency and committee staff will nod their heads in agreement. After which the
agency will seek the prior approval of the committee.18
Since Chadha, the Supreme Court has heard no challenges to the continued use of
Cass R. Sunstein, “The Rehnquist Revolution,” The New Republic, vol. 231, Dec. 27,
2004-Jan. 10, 2005, p. 32.
INS v. Chadha, 462 U.S. 919 (1983).
Fisher, American Constitutional Law, p. 217.
Louis Fisher, “Legislative Vetoes, Phoenix Style,” Extensions, a Newsletter for the Carl
Albert Congressional Research and Studies Center, University of Oklahoma, spring 1984,
A classic Supreme Court decision involving the emergency power of the
President was Youngstown Sheet & Tube Co. v. Sawyer (1952). During the Korean
War, and in the face of a threatened strike by steel workers, President Harry Truman
issued an executive order directing Secretary of Commerce Charles Sawyer to seize
control of the nation’s steel mills. Steel companies brought suit to restrain Sawyer
from taking control of the mills. In a 6-3 decision, the Supreme Court held that in the
absence of congressional authorization, Truman lacked the authority to take
possession of the mills, even as commander-in-chief. The fatal flaw in Truman’s
executive order, wrote Justice Hugo Black in the majority opinion, was that the
“President’s order does not direct that a congressional policy be executed in a manner
prescribed by Congress — it directs that a presidential policy be executed in a
manner prescribed by the President.”19
Lawmakers are not reluctant to bring separation of power challenges to the
judiciary. Mindful of the Court’s referee role, they sometimes seek to employ it for
their own goals. Increasingly, Members turn to the court to accomplish ends they
were unable to achieve in Congress. Often, they ask the court to defend congressional
prerogatives against perceived usurpation by the President. War making is the
principal example. Not since World War II has Congress declared war, although it
may enact legislation that is its functional equivalent. Recent Presidents of both
parties have committed American troops to combat on their own initiative. As a
public law scholar pointed out with respect to war power suits brought by Members:
From the Vietnam War to the present day, members of Congress have gone
to court to contest presidential wars and defend legislative prerogatives. In most
of these cases, the courts held that the lawmakers lacked standing to bring the
case. Even when legislators were granted standing, the courts refused relief on
numerous grounds. Judges pointed out that the legislators represented only a
fraction of the congressional membership and that often another group of
legislators had filed a brief defending the president’s action. Courts regularly
note that Congress as a whole has failed to invoke its institutional powers to
confront the president.20
Usually, courts dismiss these suits and offer two rationales: (1) the lawsuits raise
political questions best left to the elective branches to resolve; and (2) they represent
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Whether in the majority
or in dissent, the Justices outlined many different positions with respect to Truman’s action.
“All six justices in the majority wrote separate opinions, each taking a slightly different
view of emergency power. Only Justices Black and Douglas advocated a doctrine of express
and enumerated powers. The other seven Justices, in four concurrences and three dissents,
recognized that implied and emergency powers might have to be invoked. [Justice] Jackson
developed a theory of constitutional powers that had three scenarios. Presidential authority
reaches its highest level when the President acts pursuant to congressional authorization.
His power is at its ‘lowest ebb’ when he takes measures incompatible with the will of
Congress. In between these two categories lay a ‘zone of twilight’ in which Congress
neither grants nor denies authority. In such circumstances, ‘congressional inertia,
indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite,
measures of independent responsibility.’” Fisher, American Constitutional Law, p. 259.
Louis Fisher, “The Law: Litigating the War Power with Campbell v. Clinton,”
Presidential Studies Quarterly, vol. 30 (Sept. 2000), p. 568.
conflicts between groups of lawmakers pitted against each other, not constitutional
clashes between Congress and the president.21
The Umpire Role
As the federalism umpire, the Supreme Court has sometimes taken a more
limited view of federal authority in relation to state prerogatives. As one law
professor noted: “The revival of a doctrine of federalism that constrains the power
of Congress has been a signature feature of the Rehnquist court.”22 The Rehnquist
Court stressed states’ rights in several cases through use of the Tenth Amendment
(powers not delegated to the national government or prohibited to the states are
reserved to the states or to the people) and the Eleventh Amendment (states are
protected from being sued in federal court).
In United States v. Lopez (1995), the Supreme Court overturned a federal law
banning guns near school grounds.23 For the “first time since the New Deal ... the
Court found Congress to have exceeded the bounds of its constitutional authority to
regulate interstate commerce” — in this case the movement of guns across state lines
that could end up on school playgrounds.24 Quickly, Congress moved to pass
legislation that made clear its authority under the commerce clause to restrict guns
from school zones. In 1996 it enacted a measure, which the President signed, that
said: “It shall be unlawful for any individual knowingly to possess a firearm that has
moved in or that otherwise affects interstate or foreign commerce at a place that the
individual knows, or has reasonable cause to believe, is a school zone.”25 This
legislation has not been subject to legal challenge.
As another example, in Alabama v. Garrett (2001), the Supreme Court held
that states are immune from suits brought by handicapped state employees under the
1990 Americans with Disabilities Act (ADA). Writing for the majority, Chief Justice
Rehnquist indicated that states are not required by the equal protection clause of the
Fourteenth Amendment “to make special accommodations for the disabled, so long
as their actions towards such individuals had a rational basis.” The reason lay in an
expanded notion of states’ “sovereign immunity” from suits by private citizens, even
if they can show they have been injured in violation of federal law — an
interpretation disputed by some legal scholars.26
Tom Campbell, Separation of Powers in Practice (Stanford, CA: Stanford University
Press, 2004), Chapter 15.
Richard Briffault, “A Fickle Federalism,” The American Prospect, vol. 14 (Mar. 2003),
United States v. Lopez, 514 U.S. 549 (1995).
Linda Greenhouse, “High Court Faces Moment of Truth in Federalism Cases,” New York
Times, Mar. 28, 1999, p. 3.
Fisher, American Constitutional Law, p. 355.
John T. Noonan, Jr., Narrowing the Nation’s Power: The Supreme Court Sides With the
States (Berkeley, CA: University of California Press, 2002). See CRS Report RS20828,
Another dispute between the Court’s majority and minority in Alabama v.
Garrett involved opposing views of legislative and judicial powers. Rehnquist
asserted that it is “the responsibility of the United States Supreme Court, not
Congress, to define the substance of constitutional guarantees” — a claim broader
than Chief Justice John Marshall’s famous 1803 pronouncement in Marbury v.
Madison that the duty of the courts is “to say what the law is.” Evidence of
discrimination against disabled state employees had been amassed by congressional
panels, but Rehnquist dismissed this evidence as anecdotal.
Justice Stephen G. Breyer, dissenting in Garrett, countered: “In fact, Congress
compiled a vast legislative record documenting ‘massive, society-wide
discrimination’ against persons with disabilities.” He appended a 39 page list of
findings from the ADA’s legislative history. Breyer (a one-time Capitol Hill staff
member) went on to remind his colleagues of the constitutional primacy of legislative
Unlike courts, Congress can readily gather facts from across the nation,
assess the magnitude of a problem, and more easily find an appropriate remedy....
Unlike courts, Congress directly reflects public attitudes and beliefs, enabling
Congress to better understand where, and to what extent, refusals to
accommodate disability amount to behavior that is callous or unreasonable to the
point of lacking constitutional justification. Unlike judges, Members of
Congress can directly obtain information from constituents who have first-hand
experience with discrimination and related issues.27
Federalism cases are filled with complexities. Unsurprisingly, the court does
not exhibit a fixed view as to whether it will read Congress’s power broadly or
narrowly. Three years later, in Tennessee v. Lane (2004), the court took a different
view from Garrett with respect to state sovereignty under the ADA.28 Briefly,
George Lane was a paraplegic who had to crawl up two floors to reach a county
courtroom in Tennessee because there was no elevator. (Lane had been charged with
a crime.) At a subsequent hearing, he refused to crawl up the stairs and was arrested
for failure to appear at the hearing on his case. He sued Tennessee under the ADA
and won a financial settlement. Why the different outcome in Lane compared to
Garrett? Part of the explanation is that the court considered a wider range of
evidence. In Garrett, the court considered only state employers such as the
University of Alabama; in Lane, it also examined Tennessee’s treatment of the
disabled by county and city employers. Significantly, Lane involved access to the
courts, one of the country’s key political institutions. The court is concerned about
access to employment by disabled persons, but it has traditionally demonstrated
greater concern for access to political institutions by disadvantaged groups.
University of Alabama v. Garrett: Federalism Limits on the American with Disabilities Act,
by Nancy Lee Jones.
Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001).
Tennessee v. Lane, 124 S. Ct. 1978 (2004).
A 2005 case raised some question about whether federalism would be a longlasting legacy of the Rehnquist Court.29 In Gonzales v. Raich, the Court deferred to
congressional power when it ruled that a federal law banning marijuana trumps state
laws allowing its use for medical purposes.30 In the judgment of American
University Law Professor Herman Schwartz, despite Gonzales, “the federalism
revolution is very much alive. The Court’s current federalism doctrines will likely
be extended and expanded in coming years — with or without Rehnquist.”31
The Terrorist Threat and Federalism
As the nation confronts an ongoing terrorist threat against the homeland, it is
uncertain whether the Supreme Court’s recent tendency to defer to state sovereignty
will continue. “Whenever you see a national emergency, federalism disappears,”
stated a law professor. “In a national emergency, you give the national government
the power to get done what needs to get done.”32 It is the President who gains power
during wartime, when the balance between liberty and security tilts toward the latter
and not the former.
A possible condition of extended war against terrorists raises a number of
important issues: whether and to what extent federal courts will sanction
infringements of individual privacy, allow terrorist suspects to be imprisoned without
normal legal protections, permit greater governmental secrecy, and authorize more
searches of personal records. An issue is whether curbs on civil liberties (stricter
surveillance of the populace, for example) are effective strategies for fighting
After September 11, 2001, federal district Judge Gladys Kessler said, “[T]he
court fully understands and appreciates that the first priority of the executive branch
in time of crisis is to ensure the physical security of its citizens.” By the same token,
she added, “the first priority of the judicial branch must be to ensure that our
government always operates within the statutory and constitutional constraints which
distinguish a democracy from a dictatorship.”33 The Supreme Court demonstrated
that it can rein in executive power even during wartime when in June 2004 it handed
Linda Greenhouse, “The Rehnquist Court and Its Imperiled States’ Rights Legacy,” New
York Times, June 12, 2005, p. E3 and John Yoo, “What Became of Federalism?” Los
Angeles Times, July 11, 2005, p. 11.
Gonzales v. Raich, 125 S. Ct. 2195 (2005).
Herman Schwartz, “A Deeply Rooted Revolution,” Legal Times, July 11, 2005, p. 51. See
CRS Report RL30315, Federalism, State Sovereignty and the Constitution: Basis and Limits
of Congressional Power, by Kenneth R. Thomas.
Linda Greenhouse, “Will the Court Reassert National Authority?” New York Times, Sept.
30, 2001, p. E14. The quotation is from Law Professor Robert C. Post, University of
Linda Greenhouse, “The Imperial Presidency vs. the Imperial Judiciary,” New York Times,
Sept. 8, 2002, p. E5.
down a series of rulings that denied the President’s right to hold citizens or captured
terrorists as prisoners without allowing them their day in court.34
Congress also must address how to protect the homeland against terrorism
without trampling on constituents’ civil liberties.35 The challenge it faces is that
partisan polarization in Congress makes it difficult to reach consensus on many
issues involving the clash between liberty and security. Polarization on the Supreme
Court is also not unusual, as highlighted by its recent spate of 5-4 decisions on the
balance of power between national and state governments. (Both Garrett and Lane
were 5-4 judgments.) These and other rulings have raised again the issue of how
assertive courts should be in overturning decisions of the popularly elected Congress.
Lawmakers are accountable to their constituents every time they face reelection.
Although judges are not immune to the tides of public opinion, they do not face
accountability through elections. The tension between policymaking by lawmakers
versus judge-made decisions is perennial.
It is the conventional view that the Supreme Court is the ultimate arbiter of
constitutional law, and this is often the case; but Congress, like the President, is also
involved in constitutional interpretation. Neither of the three national branches has
a monopoly on constitutional or statutory interpretation as each branch often tests and
retests decisions made by the other(s). A good example how the interpretive
decisions of the court can trigger both a legislative response and a further ruling by
the court is highlighted by the controversial case of Miranda v. Arizona (1966).
Chief Justice Earl Warren, who delivered the opinion of the Supreme Court,
stated that the case goes to the “roots of our concepts of American criminal
jurisprudence: the restraints society must observe consistent with the Federal
Constitution in prosecuting individuals for crime.” He added that the “constitutional
issue we decide ... is the admissibility of statements obtained from a defendant
questioned while in custody or otherwise deprived of his freedom of action in any
significant way.”36 The court decided, among other things, that a suspect taken into
custody by police must be accorded certain procedural safeguards. A suspect must
be told, prior to any questioning by police, of his right to the presence of an attorney
(retained or appointed), his right to remain silent, and cautioned that anything he said
might be used as evidence against him in a court of law.
Charles Lane, “Justices Back Detainee Access To U.S. Courts,” Washington Post, June
29, 2004, A1. For an analysis of federal judicial action involving terrorists, see Louis
Fisher, Military Tribunals and Presidential Power (Lawrence, KS: University Press of
Kansas, 2005), ch. 8.
Brad Knickerbocker, “America Wrestles With Privacy vs. Security,” Christian Science
Monitor, July 22, 2005, p. 3.
Miranda v. Arizona, 384 U.S. 436 (1966).
The “Miranda warnings” by police proved quite controversial, and the court was
attacked for hamstringing the ability of police to convict criminals. “It was asserted
that between 75 and 80% of the convictions in major crimes were dependent upon
confessions, and police officers and prosecutors across the country ... echoed the
sentiments of New York City’s police commissioner, Michael J. Murphy, that ‘if
suspects are told of their rights they will not confess.’”37 Congress responded to the
criticism of Miranda by including within the Omnibus Crime Control and Safe
Streets Act of 1968 (P.L. 90-351) a provision allowing, under appropriate
circumstances, voluntary confessions of arrested persons whether or not they were
informed of their rights before questioning.38 This provision, however, was never
implemented because of doubts about its constitutionality. The Supreme Court
resolved the doubts in Dickerson v.United States (2000), “holding that Miranda was
a constitutional decision that could not be overturned by statute, and consequently
[the 1968 provision] was unconstitutional.”39
Such disagreements between Congress and the courts occur, in part, because
communications between the legislative and judicial branches are less than perfect.
Neither branch understands the workings of the other very well.40 Judges are
generally aware that ambiguity, imprecision, or inconsistency may be the price for
winning enactment of legislative measures. The more Members try to define the
language of a bill, the more they may divide or dissipate congressional support for
it. Abner J. Mikva, a four-term House Democrat from Chicago who went on to
become a federal judge and later counsel to President Bill Clinton, recounted an
example from his Capitol Hill days. The issue involved a controversial strip-mining
bill being managed by Representative Morris K. Udall, then chairman of the House
Interior (now called Resources) Committee:
They’d put together a very delicate coalition of support. One problem was
whether the states or the feds would run the program. One member got up and
asked, “Isn’t it a fact that under this bill the states would continue to exercise
sovereignty over strip mining?” And Mo replied, “You’re absolutely right.” A
little later someone else got up and asked, “Now is it clear that the Federal
Government will have the final say on strip mining?” And Mo replied, “You’re
Robert F. Cushman, Leading Constitutional Decisions, 15th ed. (Englewood Cliffs, NJ:
Prentice-Hall, Inc., 1977), p. 372.
CRS Report 97-645, Repealing Miranda?: Background of the Controversy over Pretrial
Interrogation and Self-Incrimination, by Paul Wallace.
Killian, Costello, and Thomas, The Constitution of the United States of America, p. 1423.
See Dickerson v. United States, 530 U.S.428 (2000).
See Robert A. Katzmann, ed., Judges and Legislators (Washington: The Brookings
Institution, 1988) and Robert A. Katzmann, Courts and Congress (Washington: The
Brookings Institution, 1997). To be sure, there are many lawmakers, especially those who
serve on House and Senate judiciary panels, who have a good understanding of federal
courts. By the same token, there are federal judges such as Supreme Court Justice Stephen
Breyer — who once served as a professional staff aide on the Senate Judiciary Committee
— who also have a good understanding of how Congress works.
absolutely right.” Later, in the cloakroom, I said, “Mo, they can’t both be right.”
And Mo said, “You’re absolutely right.”41
Called upon to interpret statutes, judges may not appreciate the efforts required
to get legislation passed on Capitol Hill or understand how to divine legislative
history, as manifested in hearings, reports, and floor debate. For example, prior to
House passage in the 109th Congress (2005-2007) of a bill dealing with class-action
law suits, the Judiciary chairman and other lawmakers “read into the House record
a lengthy colloquy meant to guide federal judges.”42 The courts are debating what is
the proper way to approach statutory interpretation. Should judges focus only on the
plain meaning of the statutory language, or should legislative history be consulted to
help judges ascertain what Congress intended when it employed certain statutory
Role of Legislative History
A group of federal judges, led by Supreme Court Justice Antonin Scalia, argues
that legislative history is open to manipulation by individual Members of Congress,
executive officials, congressional staffers, and lobbyists and therefore is unreliable
as an indicator of statutory intent. (Of course, decisions by executive and judicial
officials are also influenced by the ideas, legal briefs, or written reports submitted to
them by lobbyists, law clerks, and others.) The essence of Scalia’s view is that laws
“mean what they actually say, not what legislators intended them to say but did not
write into the law’s text for anyone ... to read.”43 Other federal judges, including
Supreme Court Justice Breyer, defend the value of legislative history, finding it
useful in statutory interpretation. “It is dangerous,” Breyer asserted, “to rely
exclusively upon the literal meaning of a statute’s words.”44
The dispute over legislative history is well illustrated by Congress’s passage of
the Civil Rights Act of 1991. The law overturned, in whole or in part, seven civil
rights cases decided by the Supreme Court.45 Yet the 1991 legislation was filled with
ambiguities, and so lawmakers created their own legislative history during floor
debate. A memorandum was even put in the Congressional Record stating that this
written report was the exclusive legislative history for certain contested provisions.
During debate on the legislation, a Senator pointed out the pitfalls of relying on
legislative history. His position essentially endorsed Justice Scalia’s view that
“Q&A: Abner J. Mikva; On Leaving Capitol Hill for the Bench,” New York Times, May
12, 1983, p. B8.
David Rogers and Monica Langley, “Bush Set to Sign Landmark Bill On Class Actions,”
Wall Street Journal, Feb. 18, 2005, p. A7.
Amy Gutmann, “Preface,” in Antonin Scalia, ed. A Matter of Interpretation (Princeton,
NJ: Princeton University Press, 1997), p. vii.
Jonathan Kaplan, “High Court to Congress: Say What You Mean,” The Hill, Feb. 5, 2003,
p. 21. See Jess Bravin, “Scalia, Breyer: High Court Polar Opposites,” Wall Street Journal,
July 5, 2005, p. A4, and Louis Fisher, “Statutory Construction: Keeping A Respectful Eye
on Congress,” SMU Law Review, vol. 53 (winter 2000), pp. 49-80.
Ruth Marcus, “Lawmakers Override High Court,” Washington Post, Oct. 31, 1991, p. A1.
Congress should state clearly what it means or wants in the law instead of in floor
debate or other explanatory statements.46
Supreme Court Justice John Paul Stevens expressed a different opinion, saying
that a “stubborn insistence on ‘clear statements’ [in the law] burdens the Congress
with unnecessary reenactment of provisions that were already plain enough.” A
House Member once stopped committee members from putting explanatory language
in a committee report by saying “Justice Scalia.” This lawmaker further said that if
Scalia’s view on legislative history became dominant, Congress would be required
to develop a new category of legislation: “the ‘No, we really meant it’ statute.”47 The
disagreement between Congress and federal judges over the utility of legislative
history was summed up by the chief counsel of the Senate Judiciary Committee: “The
textual interpretation encourages us to write clearer legislation. But unclear bills are
still written. If they were not, we would not have this fight over [the confirmation of]
judges.”48 Judges who favor the plain meaning principle of statutory construction
may still search legislative history to confirm their understanding of the legal
Legislative Checks on the Judiciary
Decisions of the Supreme Court can have profound effects on Congress and its
Members. Cases involving the redistricting of House seats, the line-item veto, and
term limits for lawmakers are recent examples. If the court arouses the ire of
Congress when it rules on statutory questions, the legislative branch can enact new
legislation. Scores of interest groups also monitor court decisions, and, if they
disagree with them, these groups are not reluctant to lobby Congress to seek their
Congress has a number of ways by which it can influence the behavior and
actions of the Supreme Court and lower federal courts. Setting aside the Senate’s
advice and consent role, which will be discussed in separate sections below,
Congress might assert its authority over the judiciary by employing one or more of
these four options: amending the Constitution, withdrawing certain matters from the
court’s appellate jurisdiction, impeaching judges, or determining organizational or
institutional features of the judiciary, such as the pay of judges or the size of the
“Compromise Civil Rights Bill Passed,” Congressional Quarterly Almanac, vol. XLVII
(Washington: Congressional Quarterly, Inc., 1992), pp. 257, 260.
Joan Biskupic, “Scalia Sees No Justice in Trying to Judge Intent of Congress on a Law,”
Washington Post, May 11, 1993, p. A4. Justice Stevens’ comment is also taken from this
Kaplan, “High Court to Congress,” p. 21.
See CRS Report RL32926, Congressional Authority Over the Federal Courts, by
Elizabeth B. Bazan, Johnny Killian, and Kenneth R. Thomas.
Generally, if the Supreme Court bases its decisions on constitutional grounds,
then Congress can only change them by constitutional amendment.50 On four
occasions, Congress successfully used the arduous process of amending the
Constitution to overturn decisions of the Supreme Court. In Chisholm v. Georgia
(1793), the Court held that citizens of one state could sue another state in federal
court. To prevent a rash of citizen suits against the states, the Eleventh Amendment
reversed this decision. It guarantees the states immunity from suits by citizens
outside its borders. The Dred Scott v. Sandford (1857) decision, which denied
African-Americans citizenship under the Constitution, was nullified by the Thirteenth
(abolishing slavery) and Fourteenth (granting African-Americans citizenship)
Amendments. The Sixteenth Amendment overturned Pollock v. Farmer’s Loan and
Trust Co. (1895), which struck down a federal income tax. The Twenty-sixth
Amendment invalidated Oregon v. Mitchell (1970), which said that Congress had
exceeded its authority by lowering the minimum voting age to eighteen for state
Lawmakers are often reluctant to amend the Constitution. As one House
member said: “I just think the Constitution has served us very well over a long, long
period of time and one needs to make a compelling case before we start amending the
Constitution to do anything.”52 The Constitution has been amended only twentyseven times; by comparison, there have been about 11,000 proposals introduced since
1789 to change this fundamental document.53 There are occasions when certain
Congress can also respond to constitutional rulings through statutory means, as noted in
the earlier discussion of Miranda. As public law scholar Louis Fisher wrote: “A 1986
decision [Goldman v. Weinberger] again illustrates how the First Amendment is shaped not
merely by court opinion but by legislative action as well. An Air Force regulation provided
that headgear may not be worn indoors except by armed security police in the performance
of their duties. An Air Force officer (an Orthodox Jew and ordained rabbi) claimed that the
regulation prevented him from wearing his yarmulke (skullcap) and therefore infringed on
his freedom to exercise his religious beliefs. The Supreme Court, split 5-4, upheld the
regulation as necessary for military discipline, unity, and order. In one of the dissents,
Justice [William] Brennan claimed that the Court’s response ‘is to abdicate its role as
primary expositor of the Constitution and protector of individual liberties in favor of
credulous deference to unsupported assertions of military necessity.’ However, other
institutions of government are capable of protecting individual liberties, Congress among
them. As Brennan later noted: ‘Guardianship of this precious liberty [of religious freedom]
is not the exclusive domain of federal courts. It is the responsibility of the States and other
branches of the Federal Government.’ Congress passed legislation in 1987 to permit
military personnel to wear conservative, unobtrusive religious apparel indoors, provided that
it does not interfere with their military duties.” See Fisher, American Constitutional Law,
Fisher, American Constitutional Law, p. 1024.
Jennifer Dlouhy, “Congress Reluctant to Change Constitution,” CQ Today, February 11,
2003, p. 9.
See CRS Report 95-316, Ratification of Amendments to the U.S. Constitution, by David
constitutional amendments appear regularly on the legislative calendar, often because
the political or social circumstances of the day give rise to them.
Today’s judicial nomination battles, for example, have led some to suggest
term-limits (15 or 18 years, for instance) for federal judges. “If the Senate can’t
figure out how to reach a truce in its battles over these all-important jobs,” wrote one
analyst, “maybe the best solution is to make the jobs not quite so important.”54
According to one commentator, “something of a consensus has developed around a
constitutional amendment to limit justices’ terms” to 18 years.55 A group of lawyers
contends that Supreme Court justices serve too long (18.7 years is the average length
of tenure on the Rehnquist Court), which gives rise to aging justices who may
become out-of-touch with the times or too impaired to know it. To avoid the
difficulties of winning approval of a constitutional amendment, they propose a
complex legislative approach that would “force justices into senior status after
roughly 18 years on the high court.”56
Withdrawal of Jurisdiction
Under its constitutional authority to determine the court’s appellate jurisdiction,
Congress may threaten to withdraw the Supreme Court’s authority to review certain
categories of cases.57 The cases that promote court jurisdictional-stripping actions
by Congress share certain features: they are controversial (abortion and school prayer,
for example); they are triggered by state or federal court decisions (the Massachusetts
Supreme Court’s decision that it is discriminatory to prohibit gay marriages, for
example); and they arouse partisan and ideological passions among lawmakers and
the electoral groups affiliated with each party. Despite numerous legislative threats
to constrict or withdraw jurisdiction, on only one occasion in American history did
Congress prevent the Supreme Court from deciding a case by removing its appellate
This extraordinary action was taken by a Congress dominated by Radical
Republicans who wanted to prohibit the Supreme Court from reviewing the
constitutionality of the Reconstruction Acts of 1867. The acts substituted
military rule for civilian government in the ten southern states that initially
refused to rejoin the Union and established procedures for those states to follow
to gain readmittance and representation in the federal government.58
Norman Ornstein, “To Break the Stalemate, Give Judges Less Than Life,” Washington
Post, Nov. 28, 2004, p. B3. See Stuart Taylor, Jr., “Life Tenure Is Too Long for Supreme
Court Justices,” National Journal, June 25, 2005, pp. 2033-2034.
Bruce Bartlett, “Fusillades ... and Tenure Traps,” Washington Times, July 6, 2005, p.
Tony Mauro, “Profs Pitch Plan for Limits on Supreme Court Service,” Legal Times, Jan.
3, 2005, p. l.
See CRS Report RL32171, Limiting Court Jurisdiction Over Federal Constitutional
Issues: “Court Stripping,” by Kenneth R. Thomas.
Joan Biskupic and Elder Witt, Guide to the U.S. Supreme Court, 3rd ed., vol. II
Congress passed legislation repealing the Supreme Court’s right to hear appeals
involving these matters and prevented “a possibly hostile Court from using the power
of judicial review to invalidate a piece of legislation that was of vital concern to those
who controlled the legislative body.”59
Recently, a number of lawmakers have expressed concern over certain federal
court decisions, and they have strived to remove these issues from judicial review.
During the 108th Congress, for example, many lawmakers expressed strong
opposition to a Ninth Circuit Court of Appeals decision that a 1954 federal law
adding the phrase “one Nation under God” to the Pledge of Allegiance was
unconstitutional on First Amendment grounds. As explained by the House Judiciary
Committee in its response to the Ninth Circuit’s ruling:
The purpose of H.Res. 132 ... is to express the sense of the House of
Representatives that the phrase “one Nation under God,” should remain in the
Pledge of Allegiance; that the Ninth Circuit Court of Appeals ruling in Newdow
v. U.S. Congress is inconsistent with the Supreme Court’s interpretation of the
First Amendment; that the Attorney General of the United States should appeal
the Ninth Circuit’s ruling; and the President should nominate, and the Senate
confirm, Federal circuit court judges who will interpret the Constitution
consistent with the Constitution’s text.60
On March 20, 2003, the House adopted H.Res. 132 by a vote of 400 to 17. A
Member reminded the court that Congress could do more than just adopt a sense of
the House resolution. “I think that [legislation to limit the court’s jurisdiction] would
be a very good idea to send a message to the judiciary [that] they ought to keep their
(Washington: CQ Press, 1997), p. 720.
William H. Rehnquist, Grand Inquests: The Historic Impeachment of Justice Samuel
Chase and President Andrew Johnson (New York: William Morrow, 1992), p. 132.
U.S. Congress, House, Committee on the Judiciary, Expressing the Sense of the House of
Representatives That the Ninth Circuit Court of Appeals Ruling in NEWDOW v. UNITED
STATES CONGRESS Is Inconsistent with the Supreme Court’s Interpretation of the First
Amendment and Should Be Overturned, 108th Cong., lst sess., H.Rept. 108-41 (Washington:
GPO, 2003), p. 2. In June 2005, the Supreme Court ruled (Kelo v. New London) that local
governments could use their power of eminent domain to force people to sell their property
for private commercial development. This decision stirred anger in the Congress and among
lawmakers’ constituents. As a result, the House on June 30 adopted an amendment to an
appropriations bill that would “deny federal funds to any city or state project that used
eminent domain to force people to sell their property to make way for a profit-making
project such as a hotel or mall. Historically, eminent domain has been used mainly for public
purposes such as highways or airports.” See Mike Allen and Charles Babington, “House
Votes To Undercut High Court On Property,” Washington Post, July 1, 2005, p. A1. The
amendment stated: “None of the funds made available in this [transportation appropriations]
Act may be used to enforce the judgment of the United States Supreme Court in the case of
Kelo v. New London, decided June 23, 2005.” See Congressional Record, daily edition, vol.
151 (June 30, 2005), p. H5504. That same day, the House also adopted a resolution (H.Res.
340) “Expressing the Grave Disapproval of the House Regarding Majority Opinion of
Supreme Court in Kelo v. City of New London.” p. H5577.
hands off the Pledge of Allegiance.”61 On September 23, 2004, the House passed a
bill (H.R. 2028) that barred federal courts, including the Supreme Court, from
reviewing cases that challenged the phrase “under God” in the Pledge of Allegiance.
The bill stated: “No court created by Act of Congress shall have any jurisdiction, and
the Supreme Court shall have no appellate jurisdiction, to hear or decide any question
pertaining to the interpretation of, or the validity under the Constitution of, the
Pledge of Allegiance.”62
H.R. 2028 tracked a bill (H.R. 3313) the House passed earlier on July 22, 2004,
which would prevent any federal court from hearing cases that grant states the right
not to recognize gay marriages. Congress could also pass legislation prohibiting the
use of appropriated funds to enforce judicial decisions.63 None of these measures
was enacted into law but they underscore the heightened legislative concern with the
Lawmakers have acted in other ways to challenge federal courts. Illustrative
of this tendency are these examples. Many Members co-sponsored a House measure
chastising the Supreme Court for citing international law in several of their decisions;
a bill was introduced allowing Congress to overturn Supreme Court decisions by a
two-thirds vote of each chamber; another measure was proposed to forbid the courts
from reviewing the constitutionality of public displays of the Ten Commandments;
and Congress and the courts have clashed over judicial discretion in sentencing
Members of Congress may also employ strong rhetoric against federal courts.
When federal courts refused to order the reinsertion of life-prolonging feeding tubes
for the brain-damaged Terri Schiavo — especially after the GOP-led Congress
expected that to occur given that it acted quickly to enact a law shifting jurisdiction
for the case from Florida courts to federal courts — conservative lawmakers and
Congressional Record, daily edition, vol. 150 (July 22, 2004), p. H6581.
See CRS Report RS21250, The Constitutionality of Including the Phrase “Under God”
in the Pledge of Allegiance, by Angie A. Wellborn.
Congressional Record, daily edition, vol. 151 (June 15, 2005), pp. H4532-H4534, H4550H4551. The House adopted an amendment which stated: “None of the funds appropriated
in this act may be used to enforce the judgment of the United States District Court for the
Southern District of Indiana in the case of Russelburg v. Gibson County [involving the
display of the Ten Commandments on the county courthouse lawn], decided January 31,
See T. R. Goldman, “Full-Court Pressure,” Legal Times, March 28, 2005, p. 1;
Congressional Record, daily edition, vol. 150 (Mar. 4, 2004), pp. H845-H846; Jess Bravin,
“Congress May Fight Court on Global Front,” Wall Street Journal, Mar. 21, 2005, p. A4;
Warren Richey, “Court Orders Changes in Sentencing,” Christian Science Monitor, Jan. 23,
2005, p. l; Laurie Cohen and Gary Fields, “New Sentencing Battle Looms After Court
Decision,” Wall Street Journal, Jan. 14, 2005, p. A1; and Keith Perine and Seth Stern,
“Gonzales Pushes for Minimum Sentencing Guidelines for Federal Crimes,” CQ Today,
June 22, 2005, p. 7. In June 2005, the Court handed down divergent opinions on the public
display of the Ten Commandments. See Tony Mauro, “Court Offers Split Decisions on
Commandments,” Legal Times, July 4, 2005, p. 12.
outside groups were outraged. Many Members complained about an out-of-control
and unaccountable judiciary that needed to be reined in by the legislative branch.
The mounting criticism from Congress prompted Chief Justice Rehnquist, in
his 2004 annual report on the federal judiciary, to stress the importance of judicial
independence and the need to protect judges from political threats because of the
decisions they make. Judges “do not always decide cases the way their appointers
might have anticipated,” he said. “But for over 200 years it has served our
democracy well and ensured a commitment to the rule of law.”65
Impeachment of Judges
Federal judges, like other national civil officers, are subject to impeachment
under Article II of the Constitution. They are appointed for life “during good
behavior.” Only one Supreme Court justice, Samuel Chase, was impeached by the
House. This occurred in 1804, during bitter partisan battles between Federalists and
Jeffersonian Republicans. The judiciary was the last bastion of Federalist influence
after Thomas Jefferson won the presidency in the 1800 election. Intemperate and
arrogant behavior on Chase’s part, including campaigning for John Adams’s
reelection in 1800, aroused the ire of the President and his Republican allies in
Congress. On March 12, 1804, the House voted 73-32 along party lines to impeach
Chase. The Senate, however, failed to convict Chase. The importance of Chase’s
acquittal by the Senate was underscored by Chief Justice William Rehnquist.
The acquittal of Samuel Chase by the Senate had a profound effect on the
American judiciary. First, it assured the independence of federal judges from
congressional oversight of the decisions they made in the cases that come before
them. Second, by assuring that impeachment would not be used in the future as
a method to remove members of the Supreme Court for their judicial opinions,
it helped to safeguard the independence of that body.66
Other Supreme Court justices have either been threatened with impeachment or
been the subject of impeachment investigations (for example, William O. Douglas
in 1953 and in 1970). More recently, a few lawmakers have suggested that judges
who base their decisions on international precedents risk being impeached. Chief
Justice Rehnquist responded to these impeachment threats by stating that “a judge’s
judicial acts may not serve as the basis for impeachment. Any other rule would
destroy judicial independence,” since “judges would be concerned about inflaming
any group that might be able to muster the votes in Congress to impeach and convict
“Rehnquist Backs Life Tenure for Judges,” The Washington Times, Jan. 1, 2005, p. A1.
See David G. Savage, “Rehnquist Sees Threat to Judiciary,” Los Angeles Times, Jan. 1,
2005, p. A1 and Linda Greenhouse, “Rehnquist Resumes His Call For Judicial
Independence,” New York Times, Jan. 1, 2005, p. A10.
Rehnquist, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and
President Andrew Johnson, p. 114.
Greenhouse, “Rehnquist Resumes His Call For Judicial Independence,” p. A10.
Fewer than a dozen federal judges have been impeached and even a smaller
number have been convicted and removed from office. “The three most recent
impeachment efforts led to the removal of Judges Harry E. Claiborne (1986), Walter
Nixon (1989), and Alcee L. Hastings (1989).”68 Claiborne was removed for tax
evasion, Nixon for perjury, and Hastings for bribery. None of the three, however, was
barred from holding further federal office by a separate Senate vote following their
Size, Procedure, and Pay
Historically, on a half-dozen occasions the size of the Supreme Court has varied
anywhere from six to ten members. “Generally, laws decreasing the number of
justices have been motivated by a desire to punish the president; increases have been
aimed at influencing the philosophical balance of the Court itself,” such as
Roosevelt’s court-packing plan.69 Not since 1869 has Congress changed the
Supreme Court’s size from its current nine justices.
Procedurally, lawmakers have sometimes proposed that court decisions
overturning federal laws must be accomplished by a super-majority vote of the
justices. Some of the “more extreme proposals have urged that such decisions be
unanimous.”70 None of these initiatives has been agreed to by Congress. They are
often a form of message sending to highlight lawmakers’ dissatisfaction with certain
Members are interested, too, in a range of other legislative-judicial issues: the
need for stronger ethical guidelines for judges to ensure their impartiality; security
in and away from courthouses in the wake of several murders of judges; the
continuity of court operations in the event of a calamity, such as 9/11; and opening
courtrooms to television.71 Justices on the Supreme Court oppose the televising of
their proceedings, in part because the cameras might alter decision making and
intrude on the privacy of the justices, making them public celebrities.
Recently, concern has arisen about fewer aspirants seeking federal judgeships.
Part of the reason for this may be pay. “Salaries are far lower [for federal judges]
than what fresh-faced law-school grads can make at big corporate firms.”72 Chief
CRS Report 97-497, Congressional Checks on the Judiciary, by Louis Fisher.
Biskupic and Witt, Guide to the U.S. Supreme Court, p. 717. For a discussion of
Roosevelt’s failed court-packing plan, see James McGregor Burns, Roosevelt: The Lion and
the Fox (New York: Harcourt, Brace, 1956), ch. 15.
Biskupic and Witt, Guide to the U.S. Supreme Court, p. 718.
Carol Leonning, “New Rules For Judges Are Weaker, Critics Say,” Washington Post,
Dec. 17,2004, A31; David Von Drehle, “Scalia Rejects Pleas for Recusal in Cheney Case,”
Washington Post, Feb. 12, 2004, A35; Eileen Sullivan, “Courts Order Review of Judges’
Security,” Federal Times, Mar. 21, 2005, 12; and Keith Perine, “Violence Against Judges
Causes Law and Disorder,” CQ Weekly, June 20, 2005, pp. 1630-1631.
Seth Stern, “A Career as Federal Judge Isn’t What It Used to Be,” Christian Science
Justice Rehnquist said judicial pay is a “most pressing issue facing the federal
judiciary today,” in part because many qualified candidates cannot afford to serve on
the bench.73 Lawmakers recognize this problem but have been reluctant to boost the
salaries of federal district judges above their own (currently $162,100).74
Advice and Consent - Judicial Nominees
Article II, Section 2, of the Constitution states that the President “shall
nominate, and by and with the Advice and Consent of the Senate, shall appoint ...
Judges of the Supreme Court.” The founders opposed lodging the power to appoint
solely in the executive. They also opposed giving it exclusively to Congress as a
whole or to the Senate in particular. The framers compromised and provided that
judicial selections required joint action by the President and the Senate. The
President has the sole prerogative to nominate, but the power to confirm (or not) is
the Senate’s. Alexander Hamilton, in the Federalist Papers No. 66, viewed this
division of responsibility in stark terms. “There will, of course, be no exertion of
CHOICE on the part of the Senate. They may defeat one choice of the Executive and
oblige him to make another; but they cannot themselves CHOOSE — they can only
ratify or reject the choice he may have made.”
Hamilton’s view requires some modification, however. Giving two elective
institutions a voice in the appointments process necessarily meant that nominees
would be subject to a political process. Individual Senators, House Members,
interest groups, the American Bar Association (which, since 1952, has rated judicial
candidates), the press and media, and even sitting judges all may play a role in
influencing both the choice of judicial nominees and Senate action, if any, on these
nominees. The fact that federal district and appellate court jurisdictions are
geographically based means that Senators from those states (especially if they are of
the President’s party) commonly have a large say in suggesting judicial candidates
to the White House.
Norms and Practices
Extra-constitutional norms and practices shape the confirmation process.
President George Washington quickly learned the importance of the newly emerging
norm of senatorial courtesy — an informal practice in which Presidents consult
home-state Senators before submitting nominees for federal positions in their state.
When Washington “failed to seek the advice from the Georgia senate delegation
Monitor, Jan. 22, 2002, p. 1.
Edward Walsh, “Federal Judicial Pay Called Too Low,” Washington Post, May 29, 2003,
Article III, Section 1, of the Constitution states that the compensation of judges “shall not
be diminished during their Continuance in Office.”
regarding a nomination for a federal position in Savannah, Washington was forced
to withdraw the nomination in favor of the person recommended by the senators.”75
Related to senatorial courtesy is the blue-slip policy of the Judiciary Committee,
which applies only to district and circuit court nominees. It refers to “blue approval
papers that senators are asked to submit on nominees for federal judgeships in their
states. For the past few years, both home-state senators had to submit a positive blue
slip for a nominee to be considered by the Judiciary Committee.”76 Although
exceptions and changes have been made to this policy, it does encourage the
president to seek the advice of Senators before he submits judicial nominees to the
Senate. An array of other Senate practices influences whether any action occurs on
judicial nominations, particularly holds (a request by a Senator to his or her party
leader to delay floor action on measures or nominations), the committee chair’s
prerogative of determining whether hearings will be held, and the majority leader’s
willingness to schedule floor consideration of the nominations.
An unresolved issue is the balance between advice and consent. Presidents often
favor consent over advice. The Senate tilts in the other direction. “The [George W.
Bush] administration seems to think that ‘advice and consent’ means ‘advise and
rubber stamp,’” declared a Senator.77 Another Senator pointed out that the Senate’s
constitutional role is limited to advice and consent. “It does not mean advice and
obstruction.”78 Adding to the controversy is the lack of agreement on what
qualifications are appropriate for service as a federal jurist. The Constitution makes
no reference to what Presidents or Senators should consider when exercising their
Brannon Denning, “The ‘Blue Slip:’ Enforcing the Norms of the Judicial Confirmation
Process,” William and Mary Bill of Rights Journal, vol. 10 (Dec. 2001), p. 92. See CRS
Report RL31989, Supreme Court Appointment Process: Roles of the President, Judiciary
Committee, and Senate, by Denis Steven Rutkus.
“GOP Move Would Help Judicial Nominees,” Washington Post, Jan. 24, 2003, p. A25.
See Brannon P. Denning, “The Judicial Confirmation Process and the Blue Slip,”
Judicature, vol. 85 (Mar.-Apr. 2002), pp. 218-226 and CRS Report RL32013, The History
of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present, by Mitchel A.
Sollenberger. The blue slip tradition has undergone change over the years. One version of
the practice is as follows: “Home-state senators are typically given great deference when it
comes to judicial nominations, and negative blue slips from both of a state’s senators usually
are enough to block a nominee from advancing through the Judiciary Committee.” Jennifer
Dlouhy, “GOP to Press Votes Every Day This Week on Judges,” CQ Today, July 29, 2003,
p. 6. The Office of Legal Policy of the U.S. Department of Justice defines blue slips this
way: “A blue slip is the traditional method of allowing the home state senators of a judicial
nominee to express their approval or disapproval. Blue slips are generally given substantial
weight by the Judiciary Committee in its consideration of a judicial nominee. The process
dates back several decades and is grounded in the tradition of ‘senatorial courtesy,’ which
traces its roots back to the presidency of George Washington.”
Janet Hook, “Democrats Spoiling for Estrada Fight,” Los Angeles Times, Feb. 6, 2003, p.
Congressional Record, daily edition, vol. 149 (Feb. 12, 2003), p. S2233. For further
divergent senatorial views on the meaning of “advice and consent,” see Congressional
Record, daily edition, vol. 151, (June 23, 2005), pp. S7204-S7208, S7228-S7231.
respective roles. Apart from the standard qualifications that everyone expects in
prospective judges — legal experience, ethical behavior, recognized competence, and
so on — an age-old question is whether political or ideological “litmus tests” are
appropriate for presidents to use when selecting judicial nominees or for Senators to
use when deciding whether to vote for confirmation.79 What place should a person’s
legal philosophy or ideology have in the appointments process?
Unsurprisingly, many Presidents search for ideologically compatible nominees
to place on the federal bench. The presidency of Ronald Reagan was the first to put
in place an institutional apparatus “to ensure that Reagan judicial nominees were
compatible with the philosophical and policy orientation of the President.”80 In the
opinion of North Carolina law professor Michael Gerhardt, the George W. Bush
administration follows this general approach in selecting judicial nominees.
The people counseling Bush on judicial appointments are convinced that
his father erred in appointing some judges, notably David Souter, who has
become a reliable vote for the Supreme Court’s moderate wing and cast a pivotal
vote for reaffirming Roe v. Wade [upholding a woman’s right of abortion during
the first trimester]. Consequently, Bush’s counselors conduct extensive
interviews with prospective nominees about their judicial philosophies. Many of
the nominees have been active members of the Federalist Society, established in
the early 1980s to organize, cultivate and sharpen conservative thinking about the
Constitution. Activity within the Federalist Society constitutes an important —
and sometimes the only — evidence of a young conservative’s ideological
Since the policy or ideological views of judicial candidates influence
presidential nominating decisions, it should not be startling to people that “senators
have increasingly openly opposed judicial nominees on policy and judicial
“Political scientist Henry J. Abraham has identified six characteristics that nominees to
the Supreme Court (or to federal appeals and district courts) should possess: absolute
personal and professional integrity, a lucid intellect, professional expertise and competence,
appropriate professional educational background or training, the capacity to communicate
clearly, especially in writing, and demonstrated judicial temperament. Some other criteria
presidents have used — for example, geographical and religious ones — have gone by the
wayside. In recent years, other criteria, such as race and gender, have emerged. Moreover,
the Senators have more explicitly considered the nominee’s views about the role of the
Court, approaches to adjudication, values that might affect decisionmaking, and specific
areas of the law.” See Katzmann, Courts & Congress, pp. 13-14. Katzmann, a former
professor at Georgetown University and a fellow at The Brookings Institution, is a federal
appellate judge for the Second Circuit.
Sheldon Goldman, “Judicial Confirmation Wars: Ideology and the Battle for the Federal
Courts,” University of Richmond Law Review, vol. 39 (Mar. 2005), p. 871.
Michael J. Gerhardt, “Here’s What Less Experience Gets You,” The Washington Post,
March 2, 2003, pp. B1, B4. In anticipation of a possible 2005 vacancy on the Supreme
Court — the last time the Senate confirmed a nominee (Stephen Breyer) was in 1994 —
senior White House and administration officials began to interview prospective candidates
for a high court vacancy. Needless to say, this process went into overdrive when Justice
Sandra Day O’Connor announced her retirement from the Supreme Court. See Joseph Curl,
“White House Starts Search for New Justice,” The Washington Times, June 24, 2005, p. A4.
philosophical grounds.”82 Democratic Senators might contend, for example, that
conservative judicial nominees would undermine women’s rights or civil rights if
confirmed by the Senate. Republican Senators might argue that liberal judicial
nominees might be against school prayer or weaken property rights if they won
Senate confirmation. Senators also disagree about the proper scope of questioning
regarding a nominee’s ideology, judicial values, or views on controversial issues or
particular court cases.
Underlying the argument over the proper scope of questions for judicial
nominees is a long-running debate over whether senators should weigh a
nominee’s ideology or confine themselves to vetting his resume and making
general judgments about his character.83
After President Bush nominated Circuit Court Judge John G. Roberts on July
19, 2005, to replace the retiring Sandra Day O’Connor on the Supreme Court, a
Judiciary Democrat noted that there is a higher level of inquiry for Supreme Court
nominees than circuit court nominees. “This is a different ball game altogether,” he
said. “It is no longer, ‘I’m going to follow Supreme Court precedent.’ You are going
to make Supreme Court precedent and do it for a lifetime. There are many different,
more important questions that have to be asked.”84 A Judiciary Republican stated,
however, that it is “beyond the pale” to ask a nominee how he would rule in a
With the death of Chief Justice William Rehnquist on September 3, 2005,
President Bush withdrew Roberts as O’Connor’s replacement and named him instead
to succeed Rehnquist as chief justice. (Justice O’Connor agreed to remain on the
Supreme Court until her successor is confirmed by the Senate.) Roberts’ nomination
as chief justice prompted a Democratic leader to say that the “stakes are higher, and
the Senate’s advice and consent responsibility is even more important.”86
A former general counsel and staff director of the Senate Judiciary Committee
from 1987 to 1992, a period that included the nominations of Robert Bork, Anthony
Kennedy, David Souter, and Clarence Thomas to the Supreme Court, spotlighted
perhaps the critical issue in questioning nominees to the Supreme Court: “How
specific should Members of the Senate Judiciary Committee be when they question
a Supreme Court nominee about his or her judicial and constitutional philosophy —
Goldman, “Judicial Confirmation Wars,” p. 871.
Keith Perine, “Democrats Want All the Answers,” CQ Today, July 21, 2005, p. 30. See
CRS Report RL33059, Proper Scope of Questioning of Supreme Court Nominees: The
Current Debate, by Denis Steven Rutkus.
Ralph Lindeman, “Specter Lays Out Views on Proper Questions To Ask Bush Supreme
Court Nominee Roberts,” Daily Report for Executives, Bureau of National Affairs, July 21,
2005, p. C-2.
Ibid., p. C-1.
Jo Becker, “Democrats Pledge More Intense Scrutiny of Roberts,” Washington Post, Sept.
6, 2005, p. A6.
and what kind of answers should a nominee provide?”87 Based on his experience and
personal judgment, the former staff director outlined three models of questioning.
First, at one end of the spectrum, Senators ask “laser-like questions designed to elicit
commitments about specific cases.” At the other end of the spectrum, Senators take
a narrow approach and foreclose “all questioning of [a nominee’s] judicial
philosophy.” The third approach is where Senators “seek philosophical particularity
and the nominee engages in a real dialogue on the critical issues of the day — a
national conversation if you will.”88
Over the past two centuries, approximately 25% of presidential nominations to
the Supreme Court have failed to make it to the highest court in the land.
“Nominations that failed to be confirmed by the Senate have been disposed of in a
variety of ways, including withdrawal by the President, inaction in the [Judiciary
Committee], inaction in the Senate, postponement, tabling, rejection on the Senate
floor, and filibuster on the Senate floor.”89 Most of the rejections occurred in the
19th century, with President John Tyler holding the record: five of his six nominees
were rejected by the Senate. After the Senate turned down John Parker in 1930, no
Supreme Court nominee was rejected until the presidency of Lyndon B. Johnson.
In June 1968, Chief Justice Earl Warren informed Johnson of his intention to
retire. “Concern that Richard Nixon might win the presidency later that year and get
to choose his successor dictated Warren’s timing.”90 Johnson nominated his close
friend on the court, Associate Justice Abe Fortas, to be the next chief justice.
However, when Fortas’s alleged ethical violations (accepting private money to teach
a college course) came to light, it triggered the first filibuster in the Senate’s history
on a Supreme Court nomination, which doomed Fortas. (Some lawmakers and
others disagree that Fortas was subject to a filibuster.)91 Cloture could not be
Jeffrey J. Peck, “Do’s and Don’ts for Questioning Nominees To the Supreme Court,” Roll
Call, July 18, 2005, p. 10.
CRS Report RL31171, Supreme Court Nominations Not Confirmed, 1789-2004, by Henry
Richard Baker, “Senate Historical Minute,” The Hill, October 2, 2002, p. 12. Mr. Baker
holds the official post of Senate Historian. The Senate Judiciary Committee sometimes
follows the so-called “Thurmond Rule,” after the late Senator Strom Thurmond of South
Carolina, a former chair of the panel. According to a Judiciary Democrat, the informal
Thurmond rule is a “well-established practice that in presidential election years there comes
a point when judicial confirmation hearings are not continued without agreement.” See
Sheldon Goldman, et. al., “W. Bush’s Judiciary: The First Term Record,” Judicature, vol.
88 (May-June 2005), p. 263.
Former GOP Senator Robert Griffin, Mich., who led the opposition to Fortas, stated in
a June 2, 2003, letter to Senator John Cornyn, that “four days of debate on a nomination for
Chief Justice is hardly a filibuster.” He then cited his closing senatorial remarks
(Congressional Record, vol. 114, Oct. 1, 1968, p. 28930): “When is a filibuster, Mr.
President? ... There have been no dilatory quorum calls or other dilatory tactics employed.
invoked to end the bipartisan filibuster and Johnson withdrew his nomination for the
chief judgeship. The next year, enmeshed in further ethical controversies, Fortas
resigned from the Court under threat of impeachment by the House.92
Also in 1969, the Senate rejected President Nixon’s nominee to fill the Fortas
vacancy, Clement Haynsworth, on the grounds of insensitivity to civil rights issues.93
A year later another Nixon nominee, Harold Carswell, was rejected because of what
opponents characterized as his modest and undistinguished record as a lower court
judge.94 President Ronald Reagan’s nomination of conservative Robert Bork to the
Supreme Court in 1987 sparked the often-bitter confirmation battles that still
continue today. During nationally televised hearings, members of the Judiciary
Committee probed Bork’s extensive written record to evaluate his constitutional and
philosophical beliefs. Bork’s nomination came at a time of public concern about the
Supreme Court’s ideological balance, and because Bork’s views were perceived as
too conservative and controversial by many Senators (and various outside groups),
the Senate rejected the nominee by a 58 to 42 margin. (Bork’s nomination fight gave
rise to a made-up verb — “to bork” — which means to attack nominees by launching
a politically-based campaign against them.)95
Controversial, too, was President George Bush’s 1991 nomination of Clarence
Thomas, who was narrowly approved by the Senate on a 52 to 48 vote. Law
professor Anita Hill, who previously worked for Thomas, charged that he had
sexually harassed her on the job. The charges and countercharges played out on
national television during the Judiciary Committee’s hearings. Many watched the
The speakers who have taken the floor have addressed themselves to the subject before the
Senate, and a most interesting and useful discussion has been recorded in the Congressional
Record.” Griffin then implied that Members should exercise restraint in invoking cloture
at such an early stage in the debate. The Fortas nomination was also brought to the floor
in an election year, which can encourage senatorial opposition from the party not in control
of the White House. See, for example, Charles Babington, “Filibuster Precedent?
Democrats Point to ‘68 and Fortas,” Washington Post, Mar. 18, 2005, p. A3.
“The Fortas Case: Justice’s Resignation First Under Impeachment Threat,” Congressional
Quarterly Almanac, vol. XXV (Washington: Congressional Quarterly, Inc., 1970), pp. 136139. See Robert Shogan, A Question of Judgment: The Fortas Case and the Struggle for
the Supreme Court (Indianapolis, IN: Bobbs-Merrill, 1972).
John P. Frank, Clement Haynsworth, the Senate, and the Supreme Court (Charlottesville,
VA: University Press of Virginia, 1991).
Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme
Court Appointments from Washington to Clinton, New and Revised Edition (New York:
Rowman & Littlefield Publishers, Inc., 1999), pp. 11-13.
See Norman Vieira and Leonard Gross, Supreme Court Appointments: Judge Bork and
the Politicization of Senate Confirmations (Carbondale, IL: Souther Illinois Press, 1998);
John Massaro, Supremely Political: The Role of Ideology and Presidential Management in
Unsuccessful Supreme Court Nominations (Albany, NY: State University of New York
Press, 1990); and Mark Gitenstein, Matters of Principle: An Insider’s Account of America’s
Rejection of Robert Bork’s Nomination To the Supreme Court (New York: Simon &
televised and dramatic testimony of Hill and Thomas, which attracted a large viewing
In 1995, Republicans took control of the Senate and Democrat Bill Clinton was
in the White House. More than 60 of Clinton’s nominees to Federal courts never
received hearings or waited years before any action took place on their nomination.96
For example, Richard Paez waited four years from his original nomination before he
was confirmed to sit on the Ninth Circuit Court of Appeals. The principal GOP
methods for frustrating Clinton’s judicial nominees were denying them hearings or
During the brief period from June 2001 to November 2002 when Democrats
held the Senate, they blocked many of President Bush’s judicial nominees through
holds, blue slips, and other actions. In the 108th and 109th Congresses, with
Democrats again in the minority, it was their turn to block many of Bush’s
controversial nominees. Only this time, since Democrats do not control committees
or the floor schedule, “they have been compelled to use the more incendiary weapon
of the filibuster to stop the Bush nominees they oppose. But the result has been the
same: frustration in the White House and more acrimony in Congress.”97 As one
commentator noted, what distinguishes the judicial battles of the Clinton and Bush
presidencies from those of earlier eras is that they have come “to resemble political
blood feuds, in which each side seeks to avenge the earlier assaults by the other
The struggle over who should be a federal judge has intensified. Fierce
political, strategic, and tactical conflicts between the parties and branches overlay the
Congressional Record, daily edition, vol. 151 (June 23, 2005), p. S7206. President
Clinton’s two Supreme Court nominees — Ruth Bader Ginsburg and Stephen Breyer —
won easy Senate confirmation, but many of his other selections for the federal bench were
delayed or stalled. After President Bush named John G. Roberts, Jr., to replace the retiring
Sandra Day O’Connor on the Supreme Court, some people suggested that Ginsburg’s
confirmation should set the standard for the Senate’s consideration of Roberts. Although
Ginsburg was an advocate for issues viewed as controversial by many Republicans, she was
acknowledged to be, like Roberts, a well-qualified candidate for the Supreme Court. Still,
differences between the two nominations — for example, the disparity in the judicial record
of the two with Ginsburg having a 12-year record of service as a circuit court judge
compared to Roberts’ two-year record on the same court — aroused concern among some
Democrats. Although the White House has released thousands of documents relating to
Roberts’ service (1981-1982) as special assistant to Attorney General William French Smith
and as a legal adviser (1982-1986) in the Reagan White House, the Bush Administration has
refused to release materials from Roberts’ service (1989-1993) as principal deputy solicitor
general on the grounds that this would have a chilling effect on the free flow of ideas
required to develop the government’s case in litigation. See David Savage, “Ginsburg
Nomination Cited as Example,” Los Angeles Times, Aug. 18, 2005, p. A9, and Seth Stern,
“Roberts’ Critics See Hope in Writings,” CQ Today, Aug. 22, 2005, p. 1.
Ronald Brownstein, “To End Battle Over Judicial Picks, Each Side Must Lay Down
Arms,” Los Angeles Times, Feb. 21, 2005, A8.
Helen Dewar, “Polarized Politics, Confirmation Chaos,” Washington Post, May 11, 2003,
confirmation process for many judicial nominees. A variety of factors contribute to
this development, such as intense electoral competition between the parties; narrow
majority party control of the Senate (neither party can consistently attract 60 votes
to stop filibusters); and the ability of various advocacy groups aligned with each
party to bring indirect pressure on Senators by mobilizing their network of activists
to support or oppose judicial nominees.
Circuit Court Battles
The wrangling over judges has been especially contentious for several circuit
court nominees. “The politicization of the judiciary has recently been the most
focused, and most virulent, at the appellate, or circuit level,” stated federal Judge
James Robertson.99 Four main factors explain this development. First, both parties
understand that although the Supreme Court is viewed as the “court of last resort,”
it only decides about 80 cases each year (two decades ago the number was double
that).100 Today, the 13 “regional appeals courts decide more than 63,000 cases each
year.”101 Circuit courts are “playing a more important role in setting law for vast
areas of the country. A decision by the 9th Circuit, for example, is binding on nine
states, where 19 percent of the nation’s population lives.”102 The circuit courts,
remarked a law professor, are “the Supreme Courts for their region.”103
Second, circuit courts, especially the District of Columbia Circuit Court of
Appeals, are often recruiting grounds for Supreme Court nominees. For example,
three of the nine members of today’s Supreme Court — Antonin Scalia, Ruth Bader
Ginsburg, and Clarence Thomas — served previously on the D.C. Circuit. (President
Bush’s Supreme Court nominee, Judge Roberts, sits on this Court.). The D.C.
Circuit is also important, as a Senator noted, “because Congress has vested it with
exclusive or special jurisdiction over cases involving many environmental, civil
rights, consumer protection, and workplace statutes.”104
Third, the contests over circuit court nominees are perceived by many
individuals and organizations as a warmup for the anticipated battles involving
Supreme Court vacancies. “I think it’s a warm-up for the Supreme Court,” remarked
C. Boyden Gray, White House Counsel to the first George Bush and head of a group
titled Committee for Justice.105 Conservative and liberal groups have long been
prepared for vacancies on the Supreme Court — raising money, crafting strategies,
James Robertson, “A Cure for What Ails the Judiciary,” Washington Post, May 27, 2003,
Fisher, American Constitutional Law, p. 159.
Warren Richey, “Conservatives Near Lock on US Courts,” Christian Science Monitor,
Apr. 14, 2004, p. 10.
Elizabeth Palmer, “Appellate Courts at Center of Fight for Control of Judiciary,” CQ
Weekly, Feb. 23, 2002, p. 534.
Congressional Record, daily edition, vol. 151 (June 14, 2005), p. S6429.
Goldman, “W. Bush’s Judiciary: The First Term Record,” p. 256.
conducting research on likely nominees, joining coalitions with similar goals, and
planning public relations campaigns. These groups are ready at a moment’s notice
to present a liberal or conservative perspective on the President’s selection of a
candidate to fill a Supreme Court vacancy. Senate leaders, too, prepare for any high
court vacancy. “We’re discussing a 24-hour plan and a 72-hour plan because there
is recognition we need to move quickly right out of the box” once the President
names a nominee, said an aide to a Senate leader.106
The plans and preparations were activated when President Bush, on July 19,
2005, nominated Judge Roberts to replace the retiring Sandra Day O’Connor on the
Supreme Court. Groups on the left (MoveOn.org, for example) and right (Progress
for America, for instance) responded quickly to the President’s announcement.
Less than two hours after the announcement ... two White House aligned
conservative groups had posted a pro-Roberts Web commercial and launched a
new Web site promoting his confirmation — while the liberal activist group
MoveOn.org swiftly branded him a “Right Wing Corporate Lawyer.”107
Finally, the confirmation battles represent a clash between President Bush and
Senate Democrats over who will control the ideological balance of power on the
courts. President Bush “has been more consistent and insistent than, say, [Gerald R.]
Ford or Reagan” in nominating conservatives to the bench, said a law professor.108
There is little doubt that President Bush has been successful in recasting federal
courts in a more conservative direction. For example, when the 108th Congress began
in 2003, “49.4 percent of active judges on the lower federal courts were appointed
by Republican presidents. By the time Congress adjourned [in December 2004], that
figure stood at 52.5 percent.”109 GOP court appointees “now constitute a majority of
judges on 10 of the nation’s 13 federal appeals courts” with as few as three more
judicial confirmations on key courts giving Bush a majority on all but one federal
appeals court: the Ninth Circuit in San Francisco. Many congressional Republicans
want to split this circuit into several additional court circuits in part, they argue,
because its workload is too large and cumbersome.110
Worth noting is that the party label of judicial nominees does not mean, for
example, that GOP appointees will decide cases in a way that always satisfies
Janet Hook, “If High Court Vacancy Opens, Activists Are Poised for Battle,” Los Angeles
Times, June 20, 2005, p. A7. See Michael Sandler, “Groups Primed for Court Vacancy,”
CQ Today, June 27, 2005, p. 1.
Jess Bravin and Jeanne Cummings, “Bush Taps Roberts for Supreme Court,” Wall Street
Journal, July 20, 2005, p. A8.
R. Jeffrey Smith, “Judge’s Fate Could Turn On 1994 Case,” Washington Post, Feb. 21,
2003, p. A27.
Gerard Gryski, “Partisan Makeup of the Bench,” Judicature, vol. 88 (May-June 2005),
Richey, “Conservatives Near Lock on US Courts,” p. 1. See Jonathan D. Glater,
“Lawmakers Trying Again To Divide Ninth Circuit,” New York Times, June 19, 2005, p. 12.
Republicans.111 After all, seven of the nine Supreme Court justices and most appeals
court judges are GOP appointees, yet many conservative groups rail against an “out
of control” judiciary. As two journalists pointed out:
The [judicial confirmation] fight may have more to do with the kind of
Republican who joins the courts, in particular the Supreme Court. While
Democrats are determined to block judicial nominees they see as conservative
ideologues, the Republican leadership pushes for right-leaning judges.112
The partisan battles and recriminations over judges play out in both the
Judiciary Committee and on the Senate floor. The Judiciary Committee is “polarized
to a degree that I’ve never seen,” exclaimed a GOP Senator who sits on the panel.113
Another Judiciary Republican expressed a comparable view. “I’m very concerned not
only about the broken judicial confirmation process, but also how badly it seems to
have poisoned relations in the Senate ... and hurt our ability to do other things as
well.”114 A Democratic Senator who serves on the Judiciary panel has a different
take on why there are problems with the confirmation process. “What’s broken is not
the Senate confirmation process, it’s the White House nominations process. The
process isn’t working now because President Bush is trying to stack the courts with
Republicans deny that they are trying to pack the judiciary with conservative
activists. They contend that their nominees are highly qualified professionals who
represent the mainstream of judicial thinking. These diverse perspectives are difficult
to resolve because, unlike the lawmaking process, opportunities for compromise on
controversial judgeship nominations are limited. It is typically a zero-sum game: the
President either wins Senate confirmation of his nominee or he loses. Article II of
the Constitution does authorize the president to make recess appointments to all
judicial levels: district, appellate, and the Supreme Court. President Eisenhower, for
example, used his recess authority to name Earl Warren, William Brennan, and Potter
Stewart to the Supreme Court.116
Needless to say, many Senators become vexed when Presidents use their recess
prerogative to circumvent the Senate’s advice and consent role. “I want to say this,”
said a long-time Senator. “I am opposed to judgeship appointments during a recess.
I hope that any President will proceed very cautiously and not attempt to take
See Jason DeParle, “In Battle to Pick Next Justice, Right Says Avoid a Kennedy,” New
York Times, June 27, 2005, p. A1.
Jennifer Dlouhy and Keith Perine, “Judiciary Committee Agenda Disrupted by Partisan
Acrimony,” CQ Weekly, Ap. 19, 2003, p. 945.
Ibid. See Charles Babington and Mike Allen, “Polarized Panel Awaits High Court
Nominee,” Washington Post, July 10, 2005, p. A1, and Kirk Victor, “The Senate
Showdown,” National Journal, July 9, 2005, pp. 2184-2188.
Dewar, “Confirmed Frustration with Judicial Nomination Process,” p. A19.
Amy Goldstein and Helen Dewar, “President Criticizes Filibusters,” Washington Post,
May 10, 2003, p. A6.
CRS Report RL31112, Recess Appointments of Federal Judges, by Louis Fisher.
advantage of the situation by appointing judgeships during the recess of the
Other Contemporary Developments
Several other significant points are important to note about the contemporary
confirmations process. Most judicial nominations are approved by the Senate,
roughly an 85% approval rate for the period extending from the late 1970s to the late
1990s.118 Another analysis found that recent “presidents have filled the federal bench
at roughly the same rate over the past quarter-century — about 45 to 50 new federal
judges each year.”119 However, both senatorial parties often present differing views
of the other party’s role in processing judicial nominations. Democrats sometimes
talk about President Clinton’s nominees being “pocket filibustered” in the Judiciary
Committee, never to see the light of day. Republicans lament what they perceive as
a pattern of systematic obstructionism on the floor against several of President
In addition to heightened partisanship, recent judicial nominations also confront
longer confirmation delays. Sheldon Goldman devised an index of obstruction (no
action on a nominee) and delay (it takes more than 180 days from the date of
nomination to a Senate floor vote) for district and appeals court nominees from 1977
through 2002, accounting for periods of divided or unified government. He found an
increasing pattern of delay and obstruction, especially for circuit court nominees. For
example, the “average number of days from the date the nomination was reported [by
the Judiciary Committee] to the date of confirmation [by the Senate] ranged from a
low of 1.8 days for the 97th Congress [1981-1983] for district court appointees and
Congressional Record, daily edition, vo. 146 (December 15, 2000), p. S11834. In 1960,
the Senate passed a resolution (S.Res. 334) to discourage Presidents from using recess
appointments for justices of the Supreme Court “except under unusual and urgent
circumstances.” Opponents of S.Res. 334 argued that the Senate should not interfere with
a constitutional prerogative expressly granted to the President. See CRS Report RS22039,
Federal Recess Judges, by Louis Fisher. Early in 2004, President Bush used his recess
authority to name two individuals (Charles Pickering and William Pryor) to circuit courts.
The two nominees were controversial and had been blocked from receiving confirmation
votes. Senate Democrats were angry at the recess appointments and threatened to stymie
all future judicial nominations. On May 24, 2004, the two sides reached a compromise “that
allowed for the confirmation of a slate of judicial nominees very late in the congressional
session in exchange for no more additional recess appointments.” See Goldman, “W.
Bush’s Judiciary: The First Term Record,” p. 264.
Laura Cohen Bell, “Senatorial Discourtesy: The Senate’s Use of Delay to Shape the
Federal Judiciary,” Political Research Quarterly, vol. 56, Sept. 2002, p. 593. Also see CRS
Report RL31635, Judicial Nomination Statistics: U.S. District and Circuit Courts, 19772002, by Denis Steven Rutkus and Mitchel A. Sollenberger.
Sarah Binder, Forrest Maltzman, and Alan Murphy, “History’s Verdict,” New York
Times, May 19, 2005, p. A35.
See, for example, Congressional Record, daily edition, vol. 151 (June 7, 2005), pp.
1.9 days for appeals court nominees to 38.3 days for district court nominees for the
105th Congress [1997-1999] and 68.5 days for appeals court nominees for the 106th
A number of reasons account for the delays, especially for the relatively small
number of nominees who wait many months or several years for confirmation.
Scholars confirm, for instance, that an approaching presidential election, not to
mention divided government, usually produces two outcomes: longer delays and
more rejections of presidential election-year nominees.122 Historically, various other
factors influence whether a nominee is confirmed quickly or subject to lengthy delays
or outright rejection, such as a candidate’s race or gender; the position to which a
candidate is nominated, especially if it tips the balance of power on the court; the
extent of bipartisan support for a nominee; the use of dilatory tactics by Senators; the
philosophic outlook of candidates; the extent of presidential consultation with
Senators; the likelihood that a candidate might later be nominated to the Supreme
Court; and more. President Bush even offered his own plan to speed Senate action
on judicial confirmations.123 Part of his plan, for example, would require the
chamber to vote on a judicial nominee within six months of its receipt by the Senate.
Sometimes, moreover, the White House is faulted for its slowness in naming
candidates to fill judicial vacancies.
A New Judicial Front Opens:
The “Nuclear” or “Constitutional” Option
The frustration level over judicial nominees has risen exceptionally high in
today’s Senate, largely over filibusters against a relatively small number (10 judges
blocked, 204 confirmed in the President’s first term) of Bush nominations. Senate
Republicans contend that lawmakers who cite those numbers are mixing apples and
oranges. “When our colleagues on the other side of the aisle talk about the large
number of judges that they have approved, they are folding in all of the federal
District Court nominees that everybody has always voted for,” noted a Senate GOP
leader.124 The correct measure, say Republicans, is the number of circuit court
nominees that were blocked during President Bush’s first term: 17 of 52, the lowest
Sheldon Goldman, “Assessing the Senate Judicial Confirmation Process: The Index of
Obstruction and Delay,” Judicature, vol. 86, Mar.-Ap. 2003, p. 252.
Sarah Binder, “The Senate as a Black Hole: Lessons Learned from the Judicial
Appointment Experience,” The Brookings Review, vol. 19, spring 2001, pp. 37-40.
Mike Allen and Amy Goldstein, “Bush Has Plan to Speed Judicial Confirmations,”
Washington Post, Oct. 21, 2002, p. A1. See CRS Report RS21506, Implications for the
Senate of President Bush’s Proposal on Judicial Nominations, by Betsy Palmer.
Daphne Retter, “Senators Do the Math...Then Someone Else Does the Math,” CQ Today,
Apr. 19, 2005, p. 9.
confirmation rate (67%) in modern times. Over his eight years in office, President
Clinton’s appellate court confirmation rate was 74%.125
Perhaps the best example of a circuit court nominee who sparked unusual
partisan acrimony was Miguel Estrada. During the 108th Congress, supporters of his
nomination said opponents were blocking floor action in the hopes they could find
“some damning information” about his record.126 Opponents said that controversy
over the Estrada nomination could have been resolved quickly if the Bush
administration had supplied “the memos from the Solicitor’s Office [of the
Department of Justice] while he worked there and that he wrote and [allowed] more
questioning of Estrada” at another round of Judiciary Committee hearings.127 The
administration refused to release the memoranda. Meanwhile, the Senate tried seven
times unsuccessfully to invoke cloture (closure of debate) on the nomination. In the
end, Estrada withdrew his name from consideration and remained in private law
practice. (Interesting, the same Solicitor General disclosure issue has arisen with
respect to Roberts’s nomination to the Supreme Court. Senate Democrats want
documents prepared by Roberts during his service — 1989-1993 — as principal
deputy solicitor general.)
Upset at the claimed dilatory tactics, Senate Republicans held hearings on the
constitutionality of judicial filibusters; set aside a day (November 12-13, 2003) for
the Senate to conduct an around-the-clock debate on the state of the nominations
process, with Vice President Dick Cheney presiding to underscore the
administration’s concern; and the majority leader sponsored a resolution (S.Res. 138)
setting forth a “declining vote” procedure — 60 votes required on the first cloture
attempt, 57 on the next, 54 on the third attempt, and, finally, 51, or majority cloture
— to end judicial filibusters. The Senate took no action on S.Res. 138.
At the start of President Bush’s second term, the names of several judicial
nominees whom the Democrats filibustered during the 108th Congress were
resubmitted to the Senate, further escalating tensions between Senate Democrats
and the White House. Mindful that these nominees could be blocked by filibusters,
the majority leader considered ways to break such efforts by employing a
parliamentary procedure — the so-called “nuclear” or “constitutional” option
allowing a simple majority to confirm judicial nominees. (Because the word
“nuclear” implies that something catastrophic might occur in the Senate, Republicans
prefer to call the procedural maneuver the “constitutional” option to underscore their
contestable view that the Constitution requires only a majority vote to confirm
judicial nominees, 51 Senators if everyone votes.)
Under Senate Rule XXII, 60 votes are required to invoke cloture and end a
filibuster. Many Republicans contend that filibusters impose an unconstitutional
super-majority requirement of 60 votes for the confirmation of judges. Judgeships,
Donald Lambro, “Misleading Filibuster Myths,” Washington Times, May 23, 2005, p.
Janet Hook, “Democrats Spoiling for Estrada Fight,” p. A10.
Congressional Record, daily edition, vol. 149 (Feb. 25, 2003), p. S2621.
they say, should be subject to an up-or-down majority vote. Democrats reply that the
Constitution authorizes each chamber to “determine the rules of its proceedings,”
which today means, as already noted, a 60-vote requirement to end a judicial
filibuster. If cloture is successfully invoked, then Senators have the right to confirm
judges by majority vote.128 The distinction, then, is that a super-majority vote is
necessary to terminate extended debate while a simple majority vote is the standard
to confirm judicial nominees.
A Procedural Scenario
There are various nuclear or constitutional option scenarios, but most involve
a ruling by the presiding officer (Vice President Cheney could be in the chair to cast
a tie-breaking vote) that could lead to a new Senate precedent requiring only 51 votes
to end debate on a judicial nominee. One widely circulated parliamentary plan could
proceed as follows:129
(1) The majority leader (or a surrogate) would likely ask unanimous consent
and, if someone objected, then offer a non-debatable motion to proceed to executive
session to consider a judicial nomination viewed as controversial by a number of
(2) Debate on the nomination would begin and continue for an unspecified but
extended period of time.
(3) A cloture motion (or petition) would be filed at some point in the
proceedings to end the debate; a cloture motion requires 60 votes to adopt and the
vote occurs two calendar days of Senate session after the petition is filed.
(4) Unable to attract the 60 votes, as would be expected on a contentious
nomination, the majority leader (or a colleague) would make a point of order that
further debate on the nominee is dilatory and must end after a certain number of
hours or days.
CRS Report RL32102, Constitutionality of a Senate Filibuster of a Judicial Nomination,
by Jay R. Shampansky.
Many Senators are mindful of a scholarly article that lays out how the Senate could adopt
new precedents ending judicial filibusters without formally amending Senate Rule XXII.
See Martin B. Gold and Dimple Gupta, “The Constitutional Option To Change Senate Rules
and Procedures: A Majoritarian Means To Overcome the Filibuster,” Harvard Journal of
Law & Public Policy, vol. 28, (fall 2004), pp. 205-278. Sen. Robert C. Byrd, D-WV,
challenged the precedents cited in the Gold-Gupta article. See Congressional Record, daily
edition (Mar. 20, 2005), pp. S3100-S3103. For further information, see CRS Report
RL32684, Changing Senate Rules: The “Constitutional” or “Nuclear” Option, by Betsy
Palmer; CRS Report RL32843, ‘Entrenchment’ of Senate Procedure and the ‘Nuclear
Option’ for Change: Possible Proceedings and Their Implications, by Richard Beth; CRS
Report RL32149, Proposals to Change the Senate Cloture Rule, by Christopher Davis and
Betsy Palmer; and CRS Report RL32874, Standing Order and Rulemaking Statute: Possible
Alternatives to the “Nuclear Option”?, by Christopher Davis.
(5) The presiding officer (presumably the Vice President) would sustain the
point of order, which would establish a new Senate precedent ending judicial
(6) A Senator opposed to the chair’s decision would likely appeal the ruling of
the presiding officer, which is a debatable motion.
(7) However, another Senator would offer a non-debatable motion to table the
appeal, which would be voted on immediately and requires a simple majority vote
for approval. Tabling the appeal would uphold the presiding officer’s ruling and
create the most authoritative type of precedent: one established by vote of the
Senate. This precedent would be used to stop future judicial filibusters.
Some Implications and Possible Consequences
This yet-to-be-tried maneuver has sparked considerable discussion and
controversy. Two overlapping issues — constitutional and procedural — highlight
several of the main points in contention. Constitutionally, various lawmakers and
analysts who advocate use of the maneuver argue that only a simple majority is
required to approve judicial nominees. Their reasoning: the constitutional clause
(Article II, Section 2) that deals with “advice and consent” specifies a two-thirds vote
to approve treaties but is silent on the number of votes needed to approve judicial
nominees. Accordingly, it is reasonable to conclude, they say, that the framers
wanted judicial nominees to be approved by a majority, not a super-majority, vote.
Other lawmakers and analysts contest that argument. They stress the Senate’s
constitutional right to establish its own rules, one of which (Rule XXII) requires 60
votes to end a filibuster.130 This parliamentary mandate means that Senators are
obligated to follow chamber rules to end extended debate on any judicial nominee.
Further, as chamber rules stipulate, if there is a filibuster on a proposal to change
Senate rules, including Rule XXII, an even higher supermajority threshold is required
to end one: two-thirds of the Senators present and voting (or 67 if all 100 Members
vote). Rule V of the Senate is also cited by opponents of the nuclear or constitutional
option: “The rules of the Senate shall continue from one Congress to the next
Congress unless they are changed as provided in these rules.”
In a polarized Senate, proponents of up-or-down majority votes on judicial
nominees recognize that they cannot attract 67 votes to change Rule XXII, let alone
win the 60 votes needed to terminate judicial filibusters on controversial nominees.
The parliamentary dilemma faced by those who want to end extended debate on
judicial nominees is that they are boxed in by the requirements of the current and
continuous rules of the Senate. These inherited or “entrenched” procedures
effectively prevent a majority of the Senate from writing new rules to govern and
regulate debate on judicial nominees. This practical reality gives rise to the nuclear
or constitutional option. It would permit the majority party — by majority vote —
The Senate and House have established other supermajority requirements by rule, such
as the House’s suspension of the rules procedure (a two-thirds vote) or the 60-vote
requirement in the Senate on certain budget matters.
to adopt a new and binding Senate precedent that would end judicial filibusters. (In
the Senate, precedents established in this authoritative manner trump the formal rules
of the chamber and are followed in similar procedural circumstances until they are
changed or repealed.)
Another procedural issue deserves mention. It is highlighted by this
hypothetical. A proponent of the nuclear option, as mentioned in the above scenario,
might raise a point of order and state that debate on a nominee must end immediately
or at a certain time. The rationale would be that judicial filibusters prevent the
Senate from giving its “advise and consent” as required by the Constitution. Current
Senate practices state, however: “Under the precedents of the Senate, the Presiding
Officer has no authority to pass upon a constitutional question, but must submit it to
the Senate for its decision.”131
Constitutional points of order are subject to filibusters, which require 60 votes
to end under Rule XXII, and they are subject to nondebatable motions to table.
Proponents of the nuclear or constitutional option would then confront at least two
hurdles. First, they may lack the 60 votes required to end a filibuster on the
constitutional point of order. Second, if opponents have the votes to table, this returns
the Senate to the status quo ante, the delaying tactics underway before the presiding
officer submitted the constitutional point of order to the Senate; and if the motion to
table is rejected, any filibuster on the constitutional point of order may continue.
Thus, successful use of the nuclear option under this scenario would oblige the
presiding officer — on his own initiative and authority — to set aside or ignore
Senate precedents and rule in favor of the constitutional point of order. Any appeal
of the presiding officer’s ruling upholding the constitutional point of order could be
tabled by majority vote of the Senate. This procedural scenario would also establish
a new Senate precedent ending judicial filibusters.
The point is that an up-or-down vote on judicial nominees, which President
Bush and many Senate Republicans insist upon, is prevented by the Senate’s current
rules and precedents and the majority party’s inability in a polarized environment to
attract 60 votes. (The Constitution, as Democrats point out, does not require an upor-down vote on nominees or even that they be voted upon. Likewise, there is no
requirement for a committee to vote on a nominee and report the judicial candidate
for floor action.) Thus, advocates of the nuclear or constitutional option plan to set
aside established procedures — what may be called the “regular order” — and create
new practices and precedents by a majority rather than a super-majority vote of the
As a flexible and adaptable institution, the Senate can change its procedures by
out-of-the ordinary means even if doing so creates dismay and discontent among
some Senators. A leading Senate opponent of this parliamentary option, and an
acknowledged authority on the chamber’s rules and precedents, pointed out: the
nuclear or constitutional option “has been around a long time; since 1917 in fact, the
year the cloture rule was adopted by the U.S. Senate. It required no genius ... to
Floyd M. Riddick and Alan S. Frumin, Senate Procedure: Precedents and Practices
(Washington: GPO, 1992), p. 685.
conjure up [this idea]. All that it takes is, one, to have the chair wired. Two, to have
a majority of 51 votes to back up the chair’s ruling. And three, a [determination] to
execute the [procedural maneuver].”132
If the nuclear or constitutional option is successfully employed, opponents of
the procedural maneuver have indicated they will use all available procedural tools
(the “parliamentary fallout”) to block and frustrate all but the most essential business
of the Senate. When asked about the parliamentary steps opponents could take if the
option were employed, former Senate Democratic Leader Tom Daschle, stated:
The Senate runs on ‘unanimous consent.’ It takes unanimous consent to
stop the reading of bills, the reading of every amendment. On any given day,
there are fifteen or twenty amendments and a half-dozen bills that have been
signed off for unanimous consent. The vast majority of the work of the Senate
is done that way. But any individual senator can insist that every bill be read,
every vote be taken, and bring the whole place to a stop.133
If the procedural maneuver had been employed, opponents also had a ready-touse contingency plan. It involved the continuous introduction of “popular initiatives:
expanding tax credits for health care, raising the minimum wage, and releasing oil
from the strategic petroleum reserve to counter the rising price of gasoline.” Three
benefits were expected to flow from this strategy.
First, it would clutter up the Senate calendar, limiting the time [proponents]
had for their own priorities. Second, because [opponents of the parliamentary
option] would be proposing real legislation, [proponents] would have a harder
time casting them as mere obstructionists. Finally, it would put [proponents] on
record as voting against measures many Americans support.134
Supporters of the nuclear or constitutional option highlight the “tyranny of the
minority” that is frustrating Senate confirmation of judicial nominees. Opponents
counter that its use would weaken the Senate’s ability to check executive power,
undermine the chamber’s traditional respect for minority prerogatives, heighten
partisan acrimony, change the ideological makeup of federal courts, and make the
“minority rule” Senate function more like the “majority rule” House. Some Senators
also point out that proponents of the nuclear or constitutional option could find
themselves in the minority some day and would need the filibuster to protect against
the “tyranny of the majority.”135 Any short-term gains in judicial confirmations could
produce future costs to their long-term political and institutional interests.
Center for American Progress, A Special Presentation Broadcast Live On C-SPAN 2,
“Going Nuclear: The Threat To Our System of Checks and Balances,” Apr. 25, 2005.
Jeffrey Tobin, “Blowing Up the Senate,” The New Yorker, Mar. 7, 2005, p. 46.
David Corn, “Killing Them Softly,” The Washington Monthly, vol. 37 (July-Aug. 2005),
Charles Hurt, “McCain Irks Republicans over Anti-Filibuster Options,” Washington
Times, Apr. 16, 2005, p. A1.
Negotiations End An Impasse
Cognizant that use of the nuclear or constitutional option could alter the
character of the Senate, the chamber’s party leaders devoted weeks during early 2005
trying to reconcile their fundamental disagreements over how judicial nominees are
to be considered by the Senate. The majority leader, for example, proposed that after
100 hours of debate every nominee should receive an up-or-down vote by the
Senate.136 The minority leader opposed any curb on the right to filibuster
unacceptable judicial nominees. The majority leader emphasized that the nuclear or
constitutional option would apply only to judicial nominations and that filibusters on
legislative measures or executive nominations would continue unchanged. There
was no certainty that this promise would bind future Senates or that the procedural
maneuver might not be subsequently applied to other measures or matters.
Leadership talks broke off on May 16, 2005, with the majority leader indicating that
the nuclear or constitutional option would be employed before the Memorial Day
On May 18, the majority leader called up the controversial nomination of
Priscilla Owen to be a federal circuit court judge. Her ascent to the court had been
blocked for several years by judicial filibusters. With speculation rampant that Chief
Justice Rehnquist (suffering from thyroid cancer) would resign relatively soon from
the Supreme Court, the majority leader wanted the nuclear or constitutional option
in place to ensure that a minority could not filibuster future nominations to fill
vacancies on the Supreme Court.
On May 23, the majority leader scheduled an around-the-clock session to
demonstrate his commitment to lengthy debate on controversial judicial nominees.
A vote to invoke cloture was slated for the next day, but it was expected to fail. The
majority leader then would employ the nuclear or constitutional option.138 However,
he never had the chance to execute the procedural maneuver to end judicial
filibusters. He was blocked by an accord reached by an ad hoc group of Senators:
seven Republicans and seven Democrats.
This bipartisan group of Senators had been meeting away from public view for
days trying to come up with a compromise to break the judicial stalemate and avert
use of the nuclear or constitutional option. Late in the afternoon of May 23, the 14
Senators signed a memorandum of understanding that ended the looming
parliamentary showdown and produced at least a temporary cease-fire over judicial
“Viewpoint,” Roll Call, May 17, 2005, p. 4.
Shailagh Murray and Dan Balz, “Democrats, GOP End Talks on Filibusters,”
Washington Post, May 17, 2005, p. A1.
Keith Perine, “Daylong Debate to Set Clock Ticking,” CQ Today, May 23, 2005, p. 1 and
Shailagh Murray and Charles Babington, “Senate Leaders Prepare for Crucial Filibuster
Vote,” Washington Post, May 23, 2005, p. A1.
nominations. The agreement, which was to remain in effect through the end of the
109th Congress, had three fundamental features.139
The Bipartisan Agreement:
A Memorandum of Understanding
First, the 14 Senators agreed to vote to invoke cloture on three of the five most
controversial federal appellate court nominees, virtually assuring the three of Senate
approval. Subsequently, all three were approved by the Senate, including Owen (5th
Circuit), Janice Rogers Brown (D.C. Circuit), and William Pryor (11th Circuit). The
other two — William Myers (9th Circuit) and Henry Saad (6th Circuit) — would face
what would likely be unbreakable filibusters. As of September 2005, they have not
Second, the seven Republicans promised not to support “any amendment to or
interpretation of the Rules of the Senate that would force a vote on a judicial
nomination by means other than unanimous consent or Rule XXII.” This feature
effectively prevents the majority leader from using the nuclear or constitutional
option and protects the minority’s right to filibuster. In return, the seven Democrats
agreed that judicial nominees “should only be filibustered under extraordinary
circumstances, and each signatory must use his or her own discretion and judgment
in determining whether such circumstances exist.” With 44 Democrats and 1
Independent (a Senator who often votes with the Democrats), this provision of the
memorandum sidetracks the minority party’s ability to sustain a filibuster. (Fortyone Senators are sufficient to block invocation of cloture.) However, “extraordinary
circumstances” is an ambiguous phrase and became a source of some interpretive
Republicans suggested that Democratic support of three conservative appellate
court justices (Owen, Brown, and Pryor) meant that Democrats would find it difficult
to filibuster a conservative Supreme Court nominee. The minority leader disagreed.
“There’s nothing in [the agreement] that prevents us from filibustering somebody
that’s extreme, whether it’s on the district court, on a circuit court or the Supreme
Court,” he said.140 One of the GOP signers of the accord observed: “If one of the
seven [Democrats] decides to filibuster, and I believe it’s not an extraordinary
circumstance for the country, then I have retained my rights under this agreement to
See Keith Perine, “Bipartisan Deal Thwarts Frist’s Plan,” CQ Today, May 24, 2005, p.
1; Charles Babington and Shailagh Murray, “A Last-Minute Deal on Judicial Nominees,”
Washington Post, May 24, 2005, p. A1; Maura Reynolds and Richard Simon, “Senate Deal
Reached on Filibusters,” Los Angeles Times, May 24, 2005, p. A1; and Carl Hulse,
“Bipartisan Group In Senate Averts Judge Showdown,” New York Times, May 24, 2005, p.
A1. The seven Republicans who signed the accord were Sens.: John Warner, VA, John
McCain, AZ, Mike DeWine, OH, Lindsey Graham, SC, Olympia Snowe, ME, Susan
Collins, ME, and Lincoln Chafee, RI. The seven Democrats were: Robert C. Byrd, WVA,
Ben Nelson, NB, Mark Pryor, AR, Mary Landrieu, LA, Daniel Inouye, HI, Joseph
Lieberman, CT, and Ken Salazar, CO.
Robin Toner and Richard Stevenson, “Justice Choice Could Rekindle Filibuster Fight,”
New York Times, May 25, 2005, p. A1.
change the rules if I think that’s best for the country.”141 In short, the agreement is
based on the good faith interpretation of “extraordinary circumstances” by each of
the 14 Senators, all of whom have the right to pull out of the accord at any time.142
Third, the accord sent a signal to the White House that the President should
consult with Senate Democrats and Republicans on prospective judicial candidates.
As the memorandum of understanding stated:143
We believe that, under Article II, Section 2, of the United States
Constitution, the word “Advice” speaks to consultation between the Senate and
the President with regard to the use of the President’s power to make
nominations. We encourage the Executive branch of government to consult with
members of the Senate, both Democratic and Republican, prior to submitting a
judicial nomination to the Senate for consideration.
Such a return to the early practices of our government may well serve to
reduce the rancor that unfortunately accompanies the advice and consent process
in the Senate.
We firmly believe this agreement is consistent with the traditions of the
United States Senate that we as Senators seek to uphold.
A GOP Senator who signed the accord pointed out: “The White House might
have an easier time winning prompt confirmation if it consulted more with members
of the Senate .... There is a feeling that in the past, the Senate was more involved in
giving suggestions and signing off on nominations than it is now.”144
The agreement aroused some consternation inside and outside the Senate, with
many wondering whether it would remain in effect for long. “I don’t know whether
it’s something that’s here to stay, or just a passing moment,” remarked a Democratic
Senator.145 The majority leader, who saw his decision to use the nuclear option
circumvented by the accord, stated that the “constitutional option remains on the
table.... I will not hesitate to use it” to ensure an up-or-down vote on judicial
nominees.146 The minority leader contends that the nuclear or constitutional option
is off the table.
Maura Reynolds and Richard Simon, “Senate Deal Reached on Filibusters,” Los Angeles
Times, May 24, 2005, p. A8.
Congressional Record, daily edition, vol. 151 (June 9, 2005), p. S6343.
Seth Stern, “Deconstructing the Senate’s Bipartisan Deal on Judicial Nominations,” CQ
Today, May 25, 2005, p. 31. The terms of the accord can be found in the Congressional
Record, daily edition, vol. 151 (May 24, 2005), pp. S5830-S5831.
Ronald Brownstein and Janet Hook, “Senate Truce Faces Test of Bush’s Next
Nomination,” Los Angeles Times, May 25, 2005, p. A8.
Jim Drinkard and Kathy Kiely, “Compromise May Spread Beyond Filibuster
Agreement,” USA Today, May 25, 2005, p. 2A.
Congressional Record, daily edition, vol. 151 (May 24, 2005), p. S5816.
Whether the promise of the agreement will be met is problematic until it is
subject to a likely test on a Supreme Court nomination. President Bush may hold the
fate of the agreement in his hand. “If the president chooses a polarizing figure for the
high court, the seven Democrats would face enormous pressure to support a filibuster
— and that would pressure the seven Republicans to reverse direction and back the
filibuster ban.”147 (There were early indications that despite Judge Roberts’s
conservative credentials, he was viewed as a credible and non-polarizing candidate
who was unlikely to provoke an “extraordinary circumstance” filibuster.)
Diverse Definitions of “Extraordinary Circumstances”
Unsurprisingly, soon after Justice Sandra Day O’Connor announced on July 1,
2005, that she would retire from the Supreme Court, there was considerable
speculation in the press and media about the durability of the bipartisan pact. If
President Bush nominated a controversial candidate, someone that many perceive to
be out of the ideological mainstream in terms of his or her judicial views, would that
amount to “extraordinary circumstances” and trigger a filibuster? Signers of the
accord have competing interpretations. Comments from different Senators who
signed the memorandum of understanding illustrate the point.148
-“In my mind, extraordinary circumstances would include not only
extraordinary personal behavior but also extraordinary ideological positions.”
-“A nominee’s political ideology is only relevant if it has been shown to
cloud their interpretation of the law.... A pattern of irresponsible judgment,
where decisions are based on ideology rather than the law, could potentially be
-“Are they going to be activist? Their political philosophy [or ideology]
may not bother me at all if they’re not going to be an activist.”
-“Based on what we’ve done in the past with [Bush nominees since May 23,
2005], ideological attacks are not an ‘extraordinary circumstance’.”
-“Extraordinary circumstances means exactly what it says in the agreement.
We will use our discretion and our judgment in making that determination.”
-“[If] any Member [who signed the accord] considered that another Member
was filibustering a judge under a circumstance that was not extraordinary, [then]
any Member had the right to pull out of that agreement and to go back and say:
I am going to use the constitutional option to change ... the precedent of the
Brownsten and Hook, “Senate Faces Test of Bush’s Next Nomination,” p. A8.
The remarks of these Senators come from these sources: Gail Russell Chaddock, “Senate
Pack Shapes High-Court Fight,” Christian Science Monitor, July 5, 2005, p. 2; Peter Baker
and Charles Babington, “Are a Nominee’s Views Fair Game?” Washington Post, July 6,
2005, pp. A1, A4; Congressional Record, daily edition, vol. 151 (June 24, 2005), p. S7372;
and Congressional Record, daily edition, vol. 151 (June 9, 2005), p. S6343.
President Bush’s nomination of Judge Roberts seems unlikely to provoke a
filibuster, but many members of the so-called “Gang of 14” want to review his record
and wait to hear his testimony (which began on September 12, 2005) before the
Judiciary Committee prior to deciding whether extraordinary circumstances emerge
from this process. As one member of the group of 14 said of the extraordinary
circumstance clause: “You’ll know it when you see it.”149 At bottom, a judicial
filibuster will succeed only if several Democratic signers of the accord support it and
GOP signatories choose not to back the nuclear or constitutional option.
In today’s polarized environment, it is simply more difficult for the Senate to
provide its advice and consent to judicial candidates viewed as too controversial by
a significant number of its members. Everyone understands that once the Senate
confirms a judicial nominee, there is no opportunity for later Senates to reverse that
decision except through the arduous process of impeachment. The stakes are high
in confirming judicial nominees to life-time positions on the federal bench. As two
congressional scholars note: “Intense ideological disagreement coupled with the
rising importance of a closely balanced federal bench, has brought combatants in the
wars of advice and consent to new tactics and new crises, as the two parties struggle
to shape the future of the federal courts.”150
To be sure, the contemporary debate over judicial nominees involves political
and philosophical disagreements about the proper role of the courts in interpreting
the Constitution and other measures or matters. Many people say they want judges
who will not “legislate from the bench.” This comment may seem reasonable, but
in practice whether “judicial activists” are perceived to have exceeded their authority
often depends on whether someone likes or dislikes court decisions on such large
issues as “the proper balance between liberty and authority, between the state and the
Battles over judicial nominations are not a new development. Recall that the
decision in Marbury v. Madison was triggered by President Thomas Jefferson’s
directive to Secretary of State James Madison to withhold granting an officiallysigned (by President John Adams) judicial commission to Marbury; the impeachment
of Supreme Court Justice Samuel Chase in 1804; FDR’s unsuccessful “courtpacking” plan in 1937; or today’s rhetorical salvos against the judiciary in general
and specific judicial nominees. A few decades ago it was individual justices like Earl
Warren or William O. Douglas who were the targets of verbal attacks and
impeachment threats. Today, it appears that many citizens are upset with courts in
Bravin and Cummings, “Bush Taps Roberts for Supreme Court,” p. A8.
Sarah Binder and Forest Maltzmann, “Congress and the Politics of Judicial
Appointments,” in Congress Reconsidered, 8th ed., eds., Lawrence Dodd and Bruce
Oppenheimer (Washington: CQ Press, 2005), p. 313.
William H. Rehnquist, The Supreme Court: How It Was, How It Is (New York: William
Morrow, 1987), p. 387.
general, including the Supreme Court. A poll by the Pew Research Center found
that 57% of the people had a favorable of the Supreme Court — down from 70% a
decade ago. “The court is taking criticism from both sides of the political spectrum,”
remarked the director of the Pew Research Center. “Liberals lost regard for the court
in 2001 following [its ruling that President Bush had won the 2000 election], and the
court lost favor with conservative Republicans, possibly because of their discontent
about some big social issues they are focused on.”152
What seems clear, however, is that today’s judicial confirmation process for
high profile nominees is often fraught with conflict and contention. (Contentiousness
is to be expected, but not wanted is the rancor, bitterness, or name-calling that
permeates debate on some nominees.) To be sure, there are earlier examples of
federal court nominees being turned down by the Senate or subjected to vigorous
public and senatorial debate, such as President Woodrow Wilson’s 1916 nomination
of Louis Brandeis to the Supreme Court, the first Jew to sit on the high court. Yet
bruising confirmation battles seem a more regular and common occurrence today
than in the past. People may give different “start times” for the intensive, extensive,
and often critical review of judicial nominees’ public positions, ideological leanings,
legal philosophy, and general views of past court decisions. Pundits may suggest the
1968 Fortas nomination or the 1987 Bork nomination as the period when judicial
nominees began to confront a Senate confirmation process marked by greater rigor,
more partisanship, and larger interest group involvement. Presidential candidates
even raise the issue of judicial appointments during their campaigns.
The exact date for all this is probably less important than suggesting possible
explanations as to why the contemporary confirmation process has proven to be
difficult and arduous for a number of recent judicial nominees. There are at least six
forces or factors that appear to account for much of the delay, defeat, or acrimony
that shape the fate of a relatively small number of judicial candidates: wider
recognition of the influential role of the judiciary in national governance, heightened
partisanship, split party control, larger interest group involvement, legislative-judicial
misunderstandings, and constitutional ambiguities.
Wider Recognition of the Judiciary’s Influential Role
Policymaking by federal courts, through their interpretations of laws or the
Constitution, is a fact of political life which, as mentioned earlier, Alexis de
Tocqueville commented upon more than a century ago. Supreme Court Justice Oliver
Wendell Holmes remarked in 1917, that he recognized “without hesitation that
judges do and must legislate.”153 Judicial lawmaking, then, is inherent in the Court’s
exercise of judicial review. In the judgment of two Duke University law professors:
[E]very lawyer knows that judges make law — it’s their job. In fact, law
students learn in their first semester that almost all tort law (governing accidental
injuries), contract law and property law are made by judges. Legislatures did not
“Public’s View of High Court Lower Now,” Washington Times, June 16, 2005, p. A5
Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). Cited by Fisher, American
Constitutional Law, p. 17.
create these rules; judges did, and they continue to do so when they revise the
rules from time to time.
Indeed, one of the most fundamental doctrines of America law — the
authority of courts to declare laws unconstitutional — is entirely made by judges.
Nowhere does the text of the Constitution mention the power of judicial review,
and it may fairly be debated whether the framers of the Constitution intended to
create such a power.
Supreme Court justices must interpret broadly worded provisions of the
Constitution and decide the meaning of vague terms that protect “liberty” or
prevent government from the “establishment of religion” or from imposing “cruel
and unsual punishment.”154
It is unclear whether the general public views judges as lawmakers. What is
clear is the presence of many more active players — pressure groups, a 24-7 media,
pollsters, and others — engaged in discussing and influencing the judicial
confirmation process. The confirmation process is not a distant or “inside the
Beltway” activity, as it once was. Attentive constituents and many others all
understand that judges have the authority to decide consequential questions involving
criminal law, reapportionment, church-state relations, presidential elections,
federalism, war powers, and many other areas. Understandably, many people today
are getting engaged in fighting for or against the confirmation of judicial nominees.
Further, important judicial decisions are often decided by narrow margins.
Small wonder that would-be justices, especially for the Supreme Court, are usually
subjected to intense Senate and public scrutiny. Would Judge Roberts, for example,
seek to overrule Roe v. Wade (1973) if placed on the Supreme Court?155 Will
Roberts favor restraints on Congress’s lawmaking prerogatives in favor of states’
rights? What is Judge Roberts’ approach to deciding civil rights cases or interpreting
the commerce clause of the Constitution? Most citizens may be unable to recognize
Roberts or name many of the Supreme Court justices, but they do understand the key
role of the judiciary — in conjunction with other public and private actors and
institutions — in shaping American society.
There has been by many measures an increase of partisanship in the Senate
reflected, in part, by the ideological chasm between the two parties. The two Senate
parties, as journalist David Broder noted, are “more cohesive internally and further
apart from each other philosophically.”156 Good indicators of heightened partisanship
are the large number of party-line votes (a majority of Democrats facing off against
a majority of Republicans) and the increase in party cohesion (the philosophical
Erwin Chemerinsky and Catherine Fish, “Judges Do Make Law — It’s Their Job,” USA
Today, Aug. 24, 2005, p. 11A.
Roe v. Wade, 410 U.S. 113 (1973).
David S. Broder, “Don’t Bet on Bipartisan Niceties,” Washington Post, Jan. 1, 2003, p.
agreement in both parties) on these votes. Only once in the past half-century [in
1995] has the percentage of party-line votes exceeded that for 2005. In 1995, when
Republicans won control of both chambers for the first time in 40 years, the
percentage of Senate party-line votes was 68.8%; ten years later it was 68.6%.157 As
for party unity in 2005, Senate Republicans have an average score of 91% compared
to an 89% average for Senate Democrats.158 Judiciary Committee Democrats and
Republicans have also found themselves aligned against each other in disputatious
What all this means is that in a generally narrowly divided Senate with few
centrists, it is quite difficult to forge sufficient consensus to win approval of judicial
nominations, especially when Senators are not reluctant to employ an array of
parliamentary devices (filibusters, holds, etc.) to achieve their objectives. In the
judgment of one Senator, “The whole Congress has become far more polarized and
partisan so it makes it difficult to reach bipartisan agreements. The more significant
the issue, the more partisan it becomes.”160 Intense electoral competition between
the two parties adds a further partisan dimension to Senate proceedings.
Split Party Control
Split party control of the Senate and White House may make it more difficult
for Presidents to win approval of their judicial nominees and contribute to
confirmation delays. The chair of the Judiciary Committee, for example, may be
ideologically out-of-sync with the President and view unfavorably some judicial
nominees submitted by the White House. Some scholars suggest that the evidence
is not clear-cut as to whether there is much difference between unified and divided
government in the approval of judicial nominations.161
On the other hand, judgeship confirmation statistics compiled during periods of
unified and divided government from the presidencies of Jimmy Carter through the
first three years of George W. Bush’s administration indicate a general pattern of
higher confirmation success rates during periods of unified compared to divided
government.162 There is also little doubt that divided government “contributed to the
Gregory Giroux, “If History Is Any Judge, Parties Will Be At Loggerheads Over Court
Nominee,” CQ Today, July 5, 2005, p. 18 The time period in 2005 was as of the July 4
In the judgment of a journalist, “No panel in Congress can match the Judiciary
Committee’s recent record for partisanship, finger-pointing and road-blocking, not to
mention computer espionage and hearing-room vulgarity.” See David Von Drehle, “Roberts
Is Defined by His Calm,” Washington Post, Aug. 28, 2005, p. A10.
Elizabeth Shogren, “Will Welfare Go Way of Health Reform,” Los Angeles Times,
August 10, 1995, p. A18.
Morris Fiorina, Divided Government, 2nd ed. (Boston: Allyn and Bacon, 1996), pp. 95-99.
CRS Report RL31635, Judicial Nomination Statistics: U.S. District and Circuit Courts,
1977-2003, by Denis Steven Rutkus and Mitchel A. Sollenberger.
rise in length and intensity of the [confirmation] hearings.”163 Presidents may seek
out non-controversial judicial nominees to facilitate their approval by a less-thanfriendly Senate.
Whether the government is divided or unified, the approach of presidential
elections — as noted earlier — does produce confirmation delays. The minority
party in the Senate is often keen on postponing approval of judicial candidates in the
hope or expectation that their party’s candidate will win the White House in the
November election. A classic case, as noted earlier, involved President Lyndon
Johnson’s selection of Supreme Court Justice Fortas to replace the retiring Earl
Warren as Chief Justice. On the same day (June 26, 1968) that Johnson nominated
Fortas, Republicans released a statement saying the next Chief Justice should be
chosen by “the newly elected president of the United States, after the people have
expressed themselves in the November elections. We will, therefore, because of the
above principle, and with absolutely no reflection on any individuals involved, vote
against confirming any Supreme Court nominations of the incumbent president.”164
Larger Interest Group Role
Given that federal judges have life-time tenure and make decisions on important
social, economic, and political issues, it is understandable that interest groups are
actively involved in the judicial confirmation process. Interest groups (labor unions,
for example) presented testimony for the first time in 1930 against President Hebert
Hoover’s unsuccessful nomination of John Parker to the Supreme Court.165 From
active participation in only a small number of judicial confirmations, interest group
involvement — public and private — grew steadily over time as groups recognized
the increasing importance of courts and the judges appointed to them.
In 1957, for example, [William J.] Brennan was questioned for a total of
three hours, over two days of hearings (with no interest group testimony before
the full committee). Twelve years later, the Senate Judiciary Committee quizzed
Thurgood Marshall, a politically controversial nominee, for about seven hours
(with only one interest group representative testifying). In 1987, Robert Bork
answered questions for thirty hours over four and a half days; the hearings
themselves lasted for twelve days, including eighty-seven hours of testimony
taken from 112 witnesses (with some 86 representing interest groups).166
Groups of all ideological stripes — many aligned with either major party — are
actively engaged in lobbying for or against Supreme Court, circuit court, and district
court nominees. A conservative group, for instance, urged their Senate allies: “Block
Katzmann, Courts & Congress, p. 19.
Michael Sandler, “Timing, Political Climate Have Shaped Supreme Court Nomination
Battles,” CQ Today, July 5, 2005, p. 9.
Lauren Cohen Bell, Warring Factions: Interest Groups, Money, and the New Politics of
Senate Confirmation (Columbus, OH: Ohio State University Press, 2002), p. 32. Worth
noting is that a year earlier, in 1929, the Senate ended its practice of debating executive
nominations in closed session.
Katzmann, Courts & Congress, pp. 19-20.
most Clinton appointees, regardless of ideology, so as to deny Clinton his
appointments and save the slots for a Republican president to fill.”167 Various
groups, as mentioned earlier, are mobilizing armies of supporters, running radio and
television ads, and raising large sums of money to battle for or against Bush’s
nomination of Judge Roberts to serve on the Supreme Court. (Many individuals
expect Roberts to be confirmed and to vote in generally the same way as one of his
mentors, the late Chief Justice Rehnquist. Various groups and lawmakers indicate
that the successor to replace Justice O’Connor, a swing vote on the court, might
trigger a confirmation battle. As a Judiciary member said during the several days of
hearings on Judge Roberts: “This is just a warm-up for the next fight.”168)
The conservative Progress for America has raised $18 million to win Senate
approval of Bush’s choice for the high court. The liberal People for the American
Way also has raised millions to challenge Roberts’ nomination. Moreover, for the
first time the U.S. Chamber of Commerce and the National Association of
Manufacturers (NAM) will be activating their network of allies and grass-roots
supporters. “We can’t sit on the sidelines with the third branch of government”
making so many decisions affecting business, said the NAM head.169 Both
organizations have endorsed Roberts.170
That’s not all. This will be the first Supreme Court confirmation battle in
11 years — which means it will be the first such battle of the Internet age, with
its legion of bloggers, and the first of the new age of media polarization — with
phalanxes of partisan commentators on competing all-news cable channels.171
Interest groups have also created “computerized war rooms and telephone calling
strategies in an effort to exert the most pressure on wavering senators.”172
These groups, in short, are important actors in the confirmation process: either
slowing down, expediting, or encouraging the approval or rejection of selected court
nominees. Today’s confirmation battles bear the hallmarks of an electoral campaign.
As a political scientist noted:
The transformation of the Supreme Court appointment process into a
mechanism similar to that of an electoral campaign has occurred because of the
Bell, Warring Factions, p. 109. See Bob Davis and Robert S. Greenberger, “Objection!
Two Old Foes Plot Tactics in Battle Over Judgeships; Neas and Gray Shape a Clash
Growing More Vitriolic As November Vote Nears; Prelude to a High-Court Fight,” Wall
Street Journal, Mar. 2, 2004, p. A1.
Jonathan Allen, “Roberts Hearing Begins,” The Hill, Sept. 13, 2005, p. 9.
Tom Hamburger, “Process Won’t Be Business as Usual,” Los Angeles Times, July 2,
2005, p. A10.
Jim VandeHei, “Group Defends Roberts’s Voting Record,” Washington Post, August 25,
2005, p. A3.
Doyle McManus, “High Noon for High Court,” Los Angeles Times, July 3, 2005, p. A11.
John Cranford and Adriel Bettelheim, “Nomination Battle Lines Harden,” CQ Weekly,
July 4, 2005, p. 1815.
introduction of new, powerful players — the news media, interest groups, and
public opinion. These forces now shape the system of judicial selection in a way
unknown a half century ago.173
All sides in any confirmation battle recognize the importance of framing the
public debate their way and responding quickly to the claims and charges of the
opposition. Needless to say, many groups will use a Supreme Court vacancy to raise
cash for their lobbying efforts.174 Further, because opposing groups have raised so
much money to contest Roberts’ candidacy, it seems certain that there will be some
political fireworks associated with his confirmation. “No matter who got nominated,
there is just a lot of money waiting to talk,” noted Notre Dame law professor Richard
Friction between the legislative and judicial branches is inevitable in our
separation of powers and checks and balances system. One scholar suggests that
currently there is an “antagonistic relationship” between Congress and the courts,
with some people complaining about an “imperial judiciary.”176 Many reasons
account for this view — controversial court decisions or judicial actions that strike
down congressional enactments, for example — but there is another that may be
overlooked. Inter-branch tension may result from misunderstandings about the
values and incentives of the legislative and judicial worlds. A communications and
understanding gap may produce hostile attitudes and responses toward the judiciary
among some on Capitol Hill. A House chairman, for example, wrote a five-page
letter to a circuit court judge chastising him for giving a drug courier a lighter
sentence than what he believed was required under a drug statute.177
Richard Davis, Electing Judges: Fixing the Supreme Court Nomination Process (New
York: Oxford University Press, 2005), p. 7.
Thomas B. Edsall, “Vacancy Starts a Fundraising Race,” Washington Post, July 5, 2005,
Ronald Brownstein, “A Fight, Maybe, but Not a Battle,” Los Angeles Times, July 20,
2005, p. A9. See Mark Memmott, “It’s Quite a Fight, and Some of It’s About Nominee,”
USA Today, Aug. 19, 2005, p. 4A. One television ad against Roberts, declared false by
Factcheck.org, a nonpartisan project of the Annenberg Public Policy Center at the
University of Pennsylvania, was soon taken off the air. Dan Balz, “Roberts Ad Highlights
Volatility of Abortion Issue,” Washington Post, August 14, 2005, p. A4. Subsequently, the
ad was revamped and aired “with a broader, more abstract approach to opposing” Judge
Roberts. See David Kirkpatrick, “Abortion Rights Group Revamps Anti-Roberts Ad,” New
York Times, August 27, 2005, p. A11.
David M. O’Brien, “How the Republican War over ‘Judicial Activism’ Has Cost
Congress,” in eds. Colton Campbell and John Stack, Congress Confronts the Court
(Lanham, Md.: Rowman & Littlefield, 2001), p. 69. See Keith Perine, “‘Heightened
Tensions’ Fray Judicial-Legislative Relations,” CQ Weekly, September 18, 2004, pp. 21482153, and CRS Report RL32935, Congressional Oversight of Judges and Justices, by
Elizabeth Bazan and Morton Rosenberg.
Jim Snyder, “Briefly,” The Hill, July 12, 2005, p. 3.
More attention, in brief, might be given to devising creative channels of
communication which could foster greater awareness and understanding of the
interests and roles of Congress and the judiciary. For example, in the wake of a
number of attacks on the judiciary and in a highly unusual event, “all nine Supreme
Court justices broke bread with Congressional leaders ... in a small private meeting
that appears to have had no agenda other than creating better relations between the
two branches of federal government.”178 The leaders in attendance at the luncheon
included the top four party leaders of the House and Senate as well as leaders of the
House and Senate Judiciary Committees. A bipartisan congressional caucus was
formed recently with the goal of “improving the relationship between the legislative
and judicial branches.”179 As one its co-leaders explained:
Why does it matter if the Congress and the courts are at war? Because if
the separation of powers has eroded and an independent judiciary is impaired,
decisions become increasingly politicized. Public confidence in the rule of law
erodes and people begin taking the law into their own hands. 174 years ago,
Supreme Court Chief Justice John Marshall warned: “The greatest scourge an
angry heaven ever inflicted upon an ungrateful and sinning people was an
arrogant, a corrupt, or a dependent judiciary.”180
The bottom line: “If the executive and legislative branches were to cease regular
communication, the breakdown of government would be considered likely. The
absence of such communication between the judiciary and Congress should give
equal cause for concern.”181
Paul Kane and Erin P. Billings, “Justices Host Hill Leaders,” Roll Call, June 22, 2005,
Congressional Record, daily edition, vol. 151 (Apr. 14, 2005), pp. H2083-H2084.
Congressional Record, daily edition, vol. 151 (Sept. 8, 2005), p. H7793. It is worth
noting that Chief Justice Rehnquist met with the bipartisan members of the informal House
caucus. Chief Justice Rehnquist also met informally with the Senate Democratic Policy
Committee. See Congressional Record, daily edition, vol. 151 (Sept. 6, 2005), p. S9609.
Robert Katzmann, “The Underlying Concerns,” in ed., Katzmann, Judges and
Legislators: Toward Institutional Comity, p. 10. This book suggests various ways for the
legislative and judicial branches to interact. D.C. Circuit Court Judge Abner J. Mikva, who
also served in the House of Representatives before he became a judge, stated: “It would be
nice if there were greater dialogue between the legislative and judicial branches as to
legislative intent, not as to constitutionality and not as to policy decisions but as to the
question of what happens when Congress passes a law and the court interprets it.
Frequently, the Congress never gets back to the subject matter so members don’t get a
chance to say the courts have misinterpreted what Congress wanted them to do. So it would
be nice if there were some formal system that would allow the Congress to review
legislative interpretations of the courts and say, ‘No, this isn’t what we meant at all. Here
is what we meant.’ But I see no way to do this and still maintain separation of powers.” See
“Abner J. Mikva; On Leaving Capitol Hill for the Bench,” New York Times, May 12, 1983,
The Constitution splits and intermingles presidential and senatorial authority in
several specific areas, including judicial nominations. The founders granted the
Senate and President shared responsibility for judicial nominations, but they never
elaborated the specific roles of each branch. Scholars and others have long debated
the meaning of “advice and consent.” Is the President to exercise predominance in
this area or are both branches expected to be full and equal partners in the
confirmation process? Both sides can find numerous statements from the framers
and others to bolster their point of view.
Senators from opposite parties sometimes have divergent views of what the
word “advice” means in the Constitution (Article II). One Senator, for example,
stresses that the President should consult in advance with lawmakers before he
selects a “consensus” candidate. “Presidents who have listened to the Senate’s
advice and selected [highly qualified, consensus] candidates have had no problem
obtaining Senate consent,” he said.182 Another Senator noted that President Clinton
consulted with key Senators on his two Supreme Court nominees (Stephen Breyer
and Ruth Bader Ginsburg), who were easily approved by the Senate. He added:
That is not the only time advice has been sought. In 1869, President Grant
appointed [Edwin M. Stanton] to the Supreme Court in response to a petition
from a majority of the Senate and the House. In 1932, President Hoover
presented Senator William Borah, the influential chairman of the Senate Foreign
Relations Committee, with a list of candidates he was considering to replace
Justice Oliver Wendell Holmes. Borah persuaded Hoover to move the name of
the eventual nominee, Benjamin Cardozo, from the bottom of the list to the top,
and Cardozo was speedily and unanimously confirmed.183
Still another Senator underscored that the Senate is not a co-nominator of
judicial candidates, citing the Constitution’s language that the president alone
nominates. “Although consultation, in theory, may or may not be a good idea,” he
said, “there is no constitutional requirement or Senate tradition that obligates the
Congressional Record, daily edition, vol. 151 (June 23, 2005), p. S7205. This Senator
also highlighted the advisory process already in place for federal district judicial
nominations. “In selecting district judge nominees in our States, the White House sends us
the list of persons being considered seriously, and asks for our comments on each, as well
as our suggestions for additional names to consider. When they have narrowed down the
list, they share the short list with us, so that we can give our final advice as to which ones
are best and which ones would raise problems. Almost always, our advice is considered and
respected. As a result, most District Judges go through the confirmation process quietly and
expeditiously, and obtain the consent of the Senate.” p. S7206.
Ibid., p. S7208. One account stated that the Senate confirmed Cardozo’s appointment
to the Supreme Court in 10 seconds without any debate or a roll call vote. See Abraham,
Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from
Washington to Clinton, p. 154. Also see per the Stanton nomination, Charles Warren, The
Supreme Court in United States History, vol. two (Boston: Little, Brown, 1926), pp. 504506. For the record, Stanton died four days after being nominated, and thus was not
confirmed by the Senate.
President, or anyone in the executive branch, to consult with individual Senators, let
alone the Senate as an institution.” Further, “Senators should behave in a manner
that is both respectful and deserving of such a special [consultative] role in the
Supreme Court nomination process, if they expect the administration to meet them
halfway.”184 He added that President Bush “engaged in unprecedented consultation
before his nomination of Judge John G. Roberts, Jr., meeting with 70 senators during
his decisionmaking process.”185 A Democratic Senator had a different view of the
Bush administration’s consultative process. “They called up about 60 senators.
There was a lot of quantity, but not much quality in terms of an actual dialogue.
They didn’t have a real back-and-forth with us.”186
To conclude, a famous presidential scholar wrote that the Constitution is “an
invitation to struggle for the privilege of directing American foreign policy.”187 If the
reference to “directing American foreign policy” is substituted with “shaping the
composition of the federal judiciary,” Corwin’s statement would apply equally well
to struggles between the Senate and White House over the selection and approval of
Our tripartite system of governance has stood the test of time for over 200 years.
Part of the explanation for this achievement is that each branch of government
contributes something unique to the policymaking process. The President can act
with dispatch, provide unity and a national perspective to policymaking, and
command from administrative entities policy, political, procedural, and legal
expertise on all matters under the sun. Congress is an open and accessible institution
capable of representing and responding to the diverse views and interests of a
complex polity. The Supreme Court and lower federal courts protect individual and
minority rights, check legislative and executive authority, adjudicate disputes
between the states and federal government, and, more generally, uphold such values
as fairness and equality under the law. The dynamic and evolving interplay of the
three branches — conspicuously present in the judicial confirmation process —
means that “all three institutions are able to expose weaknesses, hold excesses in
check, and gradually forge a consensus on constitutional values.”188
Ibid., p. S7228. See Carl Hulse, “Democrats Seek Greater Voice in Nomination, Telling
Bush It Would Ease Process,” New York Times, July 10, 2005, p. 16 and Paul Kane, “Bush
Initiates Talks With Deal Signers,” Roll Call, July 11, 2005, p. 1.
“Consultation a Moving Target for Dems,” The Hill, July 26, 2005, p. 22.
Deborah Solomon, “Judicial Opinion,” New York Times Magazine, July 31, 2005, p. 13.
Edward S. Corwin, The President: Office and Powers, 1787-1957, 4th ed. (New York:
New York University Press, 1957), p. 171.
Louis Fisher, “Congressional Checks on the Judiciary,” in eds. Campbell and Stack,
Congress Confronts the Court, p. 35.