Schroeder, Duke's Charles S. Murphy Professor of Law and Professor of Public Policy Studies, is on leave while heading the DOJ's Office of Legal Policy, which is charged with evaluating the president's judicial candidates, among other matters. He said partisan politics are behind the fact that the confirmation process for federal district and appellate court judges has slowed considerably during the Obama administration as compared with previous administrations.
By the end of his first term, President George W. Bush had seen 204 of his judicial nominees confirmed, Schroeder noted, whereas only 100 judges nominated by President Barack Obama have been confirmed to date. Judicial vacancies have risen from 51 to 94 during his term, and the vacancy rate promises to grow to approximately 60 per year from a historic rate of 48 as members of a recently expanded bench retire and take senior status, he said.
He credited the efforts of “a lot of terrific senior judges around the country,” who are working far more than the quarter time to which they are entitled, with facilitating the relatively smooth operation of federal courts in spite of a current vacancy rate of 10 to 15 percent.
Schroeder outlined the OLP’s process for vetting White House judicial candidates, describing a thorough review of their work product, such as opinions, articles, and briefs, interviews, with the candidate and members of the judiciary and legal profession who can offer reputational input, and discussions with White House personnel in the Office of Legal Counsel (including Chris Kang ’01, who oversees the nomination and confirmation process for the president.) The process, which includes an FBI background check, takes 10 to 12 weeks on average, he said. The OLP summarizes its investigation and recommendations in a memo for the president, after which he decides whether to submit a formal nomination to the Senate for initial confirmation by the Judiciary Committee. And it’s in the Senate that the confirmation process has slowed, said Schroeder.
“The nomination process has become a part of the political agenda of each party. They each have ideas about the kind of judges they want and share a belief that the other side will produce judges they don’t want,” he said. Their interest in slowing the process down through procedural maneuvers is not motivated by a desire to “strip the judiciary of an adequate staff,” but in the hope that they can keep the judicial seats open until a like-minded president takes office. “This doesn't lead to a very smooth process, because in the Senate, a minority of people are grinding the whole operation to a halt,” said Schroeder. “So it has less to do with the qualifications of many of the individual judges whose confirmation votes are being held up and more often to do with policy disputes.”
Senate procedures designed to get over opposition resistance are time consuming and cumbersome, and aren’t always successful, he said. Cloture, he explained, requires the approval of 60 senators and 30 hours of post-cloture debate, to the exclusion of all other business. “No majority leader wants to chew up that amount of time on a [lower court] judge, typically. Basically the country just doesn't pay attention to lower-court judges. Lawyers do, professional organizations do, and law professors do ... but it doesn't have a lot of political muscle behind it one way or the other.
“In fact, the people who care most about judges in both parties tend to be the people who are the most activist, committed core constituencies of each of those parties.”
“The net result of this sort of dynamic, where the procedures favor delay and the political calculation rewards those who fight the other side's judges more than it rewards people who are spending a lot of time getting judges confirmed, is that the whole process is sort of slowing down, not on the merits of any particular nominee, but as a kind of generic matter.”
When judicial nominees have gotten Senate floor votes, they've been overwhelmingly positive, with most confirmed by unanimous votes, Schroeder said. “Which indicates, I think, that the political constituencies that are most animated about the court are more concerned about the numbers than about any particular person. They want to keep a president's number of confirmed judges as low as possible so long as they're not getting a great deal of political heat for the extraordinarily high vacancy rates.” That situation is not likely to improve as the election looms, he added.
Schroeder’s talk was sponsored by the Program in Public Law, which he co-directed before taking leave from Duke.