Written Testimony of Ralph G. Neas

President, People For the American Way

The House Judiciary Subcommittee on the Constitution

Thursday, October 10, 2002

Good morning, Mr. Chairman and members of the Committee. On behalf of the 600,000 members and supporters of People For the American Way, I thank you for the opportunity to testify today on the subject of vacancies and the federal courts.  The federal judiciary should be a topic of great interest and debate not only among Senators – who play a crucial constitutional role in reviewing nominees under consideration for lifetime appointments to federal judgeships – but also among members of the House and the American people.  We need a national debate.

It is impossible to overstate the importance of the federal judiciary to our nation’s future.  Judges confirmed today will be setting precedents and interpreting the laws of the land for decades to come.  The Senate Judiciary Committee has conducted robust, meaningful review and debates on a number of President Bush’s nominees.  That is a vitally important task.  In addition, Senate Judiciary Committee Chairman Patrick Leahy and Senate Majority Leader Tom Daschle have made significant progress in reducing the large and growing backlog of vacancies they inherited from the previous Republican-controlled Senate.

The vast majority of federal cases never make it to the Supreme Court, but are decided by lower federal courts.   These lower federal courts are extremely important, and every year decide thousands of cases that affect our lives.  In 2001, for example, the federal appellate courts decided more than 28,000 cases, many of which were important rulings on privacy, the environment, and human and civil rights. This is in sharp contrast to the United States Supreme Court, which has reviewed fewer than 100 cases in recent terms. In effect, many appeals court rulings stand as the final word governing the law in their regions.

As a result of right-wing Senators’ unprecedented obstructionism, 35 percent of President Clinton’s appellate court nominees were blocked from 1995-2000; 45 percent failed to receive a vote in the Congress during which they were nominated.  Many did not even get a hearing.  Right-wing groups hope the White House will take advantage of the vacancies their Senate allies perpetuated by filling them with right-wing ideologues.  Republican-nominated judges currently hold a majority on seven of the 13 circuit courts of appeal; three have a majority of Democratic nominees and three are divided. If all President Bush’s current nominees are approved, such judges will make up a majority on 10 circuit courts.  And by the end of 2004, Republican-appointed judges could make up a majority on every one of the 13 circuit courts of appeals.

The result is that we are in an unprecedented situation in which the future of many of our civil rights and constitutional freedoms is literally at risk.

In our system of checks and balances, the Senate has a co-equal role with the President in appointing federal judges, since it must provide its “advice and consent” before any nominee becomes a judge.  It is imperative that the Senate carries out this constitutional role in a careful, thorough and diligent manner.  Judicial nominees – who are confirmed for lifetime appointments – must be carefully scrutinized.   

·        No nominee is presumptively entitled to confirmation to a lifetime appointment to any federal court.   Particularly for the courts of appeals and the Supreme Court, a nominee bears the burden of demonstrating that he or she meets the appropriate qualifications, which should include a demonstrated commitment to civil rights and individual liberties, and a clear respect for Congress’ proper constitutional role in protecting constitutional and civil rights and the health and safety of all Americans.  More than 200 law professors have written to the Senate, setting forth these qualifications.

·        In carrying out its role, the Senate must ensure that judicial nominees are subject to the highest standard of scrutiny.   The decisions of judges last long after they and the President who appointed them have retired.  The American people must be assured that judges who are given the solemn constitutional responsibility of protecting their rights and upholding the Constitution are unequivocally committed to justice and equality for all.

·        Each nominee’s record must be examined carefully, including unpublished opinions and other information that may not be readily available.  By its very nature, this sometimes is a time consuming process but one that is essential to the Senate’s obligation to evaluate the full record of a nominee.  The mere absence of disqualifying evidence in a nominee's record should not constitute sufficient grounds for confirmation.

·        The Senate should reject far right court-packing efforts, and should withhold its consent from right-wing nominees who do not demonstrate a commitment to civil rights and liberties. Senators should take a clear and unequivocal stand, including discussing openly the potential impact of right-wing domination of the federal courts and the importance of opposing nominees whose lifetime appointments would threaten America’s rights and liberties. More moderate, mainstream nominees who reflect genuine bipartisan consultation should receive priority in processing.

Since taking control of the U. S. Senate and the Senate Judiciary Committee in July 2001, Senators Daschle and Leahy have moved promptly and responsibly to fill judicial vacancies.  It is wrong for the very same people who helped cause the delay and who told us that vacancies were not a problem a few years ago to now charge Daschle and Leahy with improper delay and then use these charges to try to stampede nominations through the Senate.

In the first year during which Democrats controlled the Senate, beginning in July 2001, the Senate confirmed 59 nominations to the federal judiciary.  These 59 confirmations are nearly four times the number confirmed during the entire first year of the first Bush administration (1989), and more than twice the number confirmed during the first year of the Clinton administration (1993). This pace is significantly ahead of what occurred when Republican Senators deliberately delayed the process from 1995 to 2000.  For example, more Republican-nominated judges were confirmed in the first year of Democratic control than were confirmed in all of 1995, 1996, 1997, 1999, or 2000.

The total number of vacancies, which climbed to 110 during Republican control, will be down to 60 once the nominees approved by the Senate Judiciary Committee this week get a final Senate vote.  And the president has not even submitted nominees for half of these vacancies.

The current pace of appellate court confirmations exceeds the confirmation rate of the Senate when it was under Republican control, contradicting right-wing claims.  The Senate has thus far confirmed 14 appellate court nominations, 11 of which were confirmed during the first year of Democratic control.  In comparison, Republicans averaged less than 8 confirmations per year between 1995 and 2000. Because of the delay and refusal to vote on President Clinton’s nominations during that period, the total number of vacancies on the courts of appeals more than doubled from 1995 to 2001, growing from 16 to 33.  In the last year, despite several new vacancies, the total number of appellate court vacancies has decreased to 27.  In fact, if Republicans had moved at the same pace that the Democratic Senate has moved since July 2001, there would now be only 6 vacancies on the courts of appeal.  This flatly contradicts accusations that no progress has been made on appellate court nominees - accusations leveled by many of the same right-wing Senators and advocates who helped create and perpetuate the large numbers of appellate court vacancies.

The current situation calls for an unprecedented bipartisan solution. The President should reject the demands of the far right, and submit more moderate nominees who are truly qualified for the federal bench.  This should include genuine consultation with Senators of both parties both before and after nominations are made.  This is the way that more progress can responsibly be made in further reducing the number of vacancies on the federal courts.