Numbers game.

   The president ... shall nominate, and by and with the advice and consent of
   the Senate, shall appoint ... judges of the Supreme Court, and all other
   officers of the United States, whose appointments are not herein otherwise
   provided for, and which shall be established by law.

Article 2, [sections] 2 of the Constitution makes the judicial nomination and confirmation process seem like a straightforward, angst-free event. Not so.

Judicial selection often results in accusations of partisanship and procrastination, even more so in an election year when the party not in control of the White House often chooses to play a waiting game. After all, if vacancies are still available after the election and a new party takes control of the White House, that party will select nominees to fill the leftover vacancies.

In this 106th Congress, for example, there has been quibbling over vacancy rates; criticism of the protocol used by the Clinton administration in the nominee-selection process; comparisons drawn between the number of judicial confirmations for Presidents Clinton, Bush, and Reagan; and, most recently, questions regarding whether there has been fair consideration of judicial nominees who are women or minorities.

"Ideological warfare has been ratcheted up in the last couple of years, and it's not good for the health of our Constitution," says Sheldon Goldman, professor of political science at the University of Massachusetts at Amherst and author of Picking Federal Judges: Lower Court Selection from Roosevelt Through Reagan. Goldman worries that if the current confirmation bottleneck doesn't ease after the November election, "we'll have a constitutional crisis."

According to Robert Evans, director of the Washington, D.C., office of the American Bar Association, "The total number of vacancies currently existing is not extraordinarily high. However, we continue to be very concerned about the delays in confirming nominees, since 21 of the vacancies are considered judicial emergencies."

A "judicial emergency," as defined by the Administrative Office of the U.S. Courts, is any judicial vacancy of more than 18 months where the per-judgeship caseload exceeds a certain amount.

As of August 31, 2000, there were a total of 60 vacancies in the federal judiciary--20 in the U.S. courts of appeals and 40 in the U.S. district courts. There were 37 nominations pending--4 on the Senate floor and 33 in the Senate Judiciary Committee, which has jurisdiction over judicial nominations. Of the 33 nominations pending before the committee, only 4 had even had a hearing. The 29 other nominations had been subject to no action whatsoever.

Since the 106th Congress convened in January 1999, President Clinton has nominated 110 people for federal judgeships. Thirty-four judges were confirmed during the first session of the 106th Congress. So far, in the second session (as of August 21, 2000), the Senate has confirmed 35 judges, bringing the total number of confirmed positions to 69.

Of the nation's last 10 presidents from George Bush back to Franklin D. Roosevelt, President Reagan holds the top spot for the total number of nominees confirmed. Judicial confirmations for Reagan total 382. President Clinton has 373 confirmations.

Shorthanded courts

While some would say 373 confirmations is nothing to gripe about, concerns go deeper than a numbers comparison. A number of the current judicial vacancies are long-standing and have left some of courts shorthanded for months and even years, which has increased the caseload for the remaining judges and has led to growing case backlogs.

The selection process for Clinton nominees begins with an extensive evaluation. Justice Department lawyers read questionnaires filled out by potential nominees and study other documents such as law review articles, published opinions, and newspaper articles. There are telephone interviews with the prospective nominees and calls placed to judges, U.S. attorneys' offices, law partners, former opposing counsel--people with whom the candidate may have had professional contact.

The potential nominee must also interview in person with the administration's vetting team, and if that goes well, the candidate then waits another four to six weeks for the FBI to conduct a full background check.

Once nominated, the real wait--for some candidates, at least--begins. For example, Helene White, whose nomination is still pending, was tapped nearly four years ago to fill a position on the Sixth Circuit. White currently serves on an appellate court in Michigan.

Playing politics

Recently, Senate Judiciary Committee Chair Orrin Hatch (R-Utah), in an article published in the Wall Street Journal, pointed out that the senators opposing various Clinton nominations are typically senators from the state in which the judgeship is located. He noted that while

   ... the White House historically has consulted with home-state senators
   about who the president will nominate ... in recent weeks, Mr. Clinton has
   revealed his determination to play politics in this election season by
   nominating numerous minorities for federal judgeships without consulting
   home-state senators, knowing full well that because of the lack of
   consultation the nominees have little chance of being confirmed.

The White House and Senate Democrats agree that politics is being played but lay the blame on Senate Republicans.

Goldman says Hatch has done a "professional job" guiding the committee through the confirmation process. However, Goldman adds that the amount of time taken to confirm nominees is at "an all-time high."

Kristin Loiacono is media relations coordinator for ATLA.