U.S. District and Circuit Court Nominations: A Diagram of Customary Procedures

U.S. District and Circuit Court Nominations: A Diagram of Customary Procedures

Order Code RS21735
February 12, 2004
CRS Report for Congress
Received through the CRS Web
U.S. District and Circuit Court Nominations:
A Diagram of Customary Procedures
Mitchel A. Sollenberger
Analyst in American National Government
Government and Finance Division
Summary
The confirmation process for U.S. district and circuit court nominations is based
on guidelines set forth by the Constitution. Article II, Section 2, provides that the
President “shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme
Court...” More specifically, Senate Rule XXXI regulates the proceedings on all
nominations in executive session. Each Senate committee, however, may adopt its own
procedures as long as they do not conflict with Senate rules.
This report summarizes both the informal and formal rules for reviewing lower
court judicial nominations. In addition, a diagram at the end of the report highlights the
customary procedures for the confirmation process, to which there might be exceptions
related to a specific nomination. Senate and Senate Judiciary Committee actions on
judicial nominations are discussed more generally in CRS Report RL31635, Judicial
Nomination Statistics: U.S. District and Circuit Courts, 1977-2003, by Denis Steven
Rutkus and Mitchel A. Sollenberger. This report will be updated as events warrant.
When a federal court vacancy occurs, the President traditionally consults Senators
of the home state where there is a vacant judgeship, especially if they are of the same
political party as the President.1 The President selects a nominee and submits a
nomination to the Senate.
Judicial nominations are referred to the Committee on the Judiciary. The committee
sends a committee questionnaire and financial disclosure forms to nominees, and may,
at the discretion of the committee chair, invite the American Bar Association to review
nominees’ qualifications.
1 In rare cases the President may select a nominee that is not from the previous judge’s home
state. For example, President George W. Bush nominated Claude Allen of Virginia to replace
Francis D. Murnaghan Jr. of Maryland on the Fourth Circuit Court of Appeals.
Congressional Research Service ˜ The Library of Congress

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A nominee’s home-state Senators are consulted by the Judiciary Committee through
the use of a committee form called a “blue slip,” which asks whether the Senators approve
or disapprove of the nomination. As a matter of recent policy, the committee does not
wait indefinitely for the return of “positive blue slips”; in practice, committee action on
a judicial nomination is unlikely if the President failed to consult with the home-state
Senators.2 The question of whether committee action will move forward with one or two
“negative blue slips” depends on the chair’s blue-slip policy during a Congress.
When the questionnaire and financial disclosure forms are returned, the chair
determines whether to hold a hearing.3 Following a hearing, the Judiciary Committee may
vote on whether to report the nomination to the full Senate. In rare cases, a Judiciary
Committee chair has forgone a hearing on a nomination and proceeded to a committee
vote.4 If a vote occurs, the committee may choose to vote on a motion to table the
nomination, to report the nomination favorably, to report the nomination without
recommendation, or to report the nomination unfavorably. If a majority of the committee
members present vote to report favorably, without recommendation, or unfavorably, the
nomination moves to the Senate floor. If a majority votes either to table the nomination
or in the negative on the other motions, then the nomination remains in committee.
Once the nomination is reported out of committee, the Senate may consider and vote
on it. If the Senate votes on the nomination, it may vote to confirm, reject, table, or
recommit. If the Senate votes to confirm or reject a nomination, either a resolution of
confirmation or one of disapproval, respectively, will be transmitted by the Secretary of
the Senate to the President. In the case of a vote to table, the nomination is returned to
the President. A vote to recommit sends the nomination back to committee. The Senate’s
vote on confirmation of a nomination can be delayed or prevented if a Senator or group
of Senators chooses to place a hold on or filibuster the nomination.
Either the Judiciary Committee or the Senate can decide not to act on a judicial
nomination.5 If no final action is taken on a nomination, it ultimately will be withdrawn
by the President or be returned to the President by the Senate upon an adjournment or
recess of more than 30 days.6
2 For further reading, see CRS Report RL32013, The History of the Blue Slip in the Senate
Committee on the Judiciary, 1917-Present, by Mitchel A. Sollenberger; and CRS Report
RS21674, The Blue-Slip Process in the Senate Committee on the Judiciary: Background, Issues,
and Options, by Mitchel A. Sollenberger.
3 Rule 26(3) also provides a process by which committee members may obtain a committee
meeting.
4 For example, during the 95th Congress the Judiciary Committee reported district court nominee
Harold L. Murphy to the Senate without holding a hearing.
5 Although unusual, Senate Rule XVII allows for the committee to be discharged from further
consideration of a nomination. See Floyd M. Riddick and Alan S. Frumin, Riddick’s Senate
Procedure: Precedents and Practices, 101st Cong., 2nd sess., S.Doc. 101-28 (Washington: GPO,
1992), pp. 943-944.
6 Occasionally, the President appoints a federal judge during a recess of Congress. Such recess
appointments are infrequent and fall outside the scope of this report. For further reading, see
(continued...)

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For further information on the structure of the confirmation process, see CRS Report
RL31980, Senate Consideration of Presidential Nominations: Committee and Floor
Procedure, by Elizabeth Rybicki; and CRS Report RL31989, Supreme Court Appointment
Process: Roles of the President, Judiciary Committee, and Senate, by Denis Steven
Rutkus.
For a further description of the Senate Judiciary Committee’s blue-slip policy, see
CRS Report RL32013, The History of the Blue Slip in the Senate Committee on the
Judiciary, 1917-Present, by Mitchel A. Sollenberger; and CRS Report RS21674, The
Blue-Slip Process in the Senate Committee on the Judiciary: Background, Issues, and
Options, by Mitchel A. Sollenberger.
For information concerning tracking and statistical data on U.S. district and circuit
court nominations, see CRS Report RL31868, U.S. Circuit and District Court
Nominations by President George W. Bush During the 107th and 108th Congresses, by
Denis Steven Rutkus and Mitchel A. Sollenberger; CRS Report RL31635, Judicial
Nomination Statistics: U.S. District and Circuit Courts, 1977-2003, by Denis Steven
Rutkus and Mitchel A. Sollenberger; and CRS Report RL32122, Judicial Nomination
Statistics: U.S. District and Circuit Courts, 1945-1976, by Mitchel A. Sollenberger.
For an analysis of the use of filibusters and holds to delay or prevent Senate action
on legislative or executive business, see CRS Report RL30360, Filibusters and Cloture
in the Senate, by Richard S. Beth and Stanley Bach; and CRS Report 98-712, “Holds”
in the Senate, by Walter J. Oleszek.
6 (...continued)
CRS Report RL31112, Recess Appointments of Federal Judges, by Louis Fisher; and CRS Report
RS21308, Recess Appointments: Frequently Asked Questions, by Henry Hogue.

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Figure 1. U.S. District and Circuit Court Nominations:
Customary Procedures for Senate Advice and Consent
* Rule 31 (6) provides that, if the Senate adjourns or recesses for more than 30 days, “all nominations pending and not finally
acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President.”
Source: Congressional Research Service.