"How An Absurd Senate Rule Kept A Powerful Judgeship Open For 1000 Days And Counting"
This weekend, former federal appellate Judge Stanley Birch celebrated his 1000th day of retirement from the federal bench, and the seat he once occupied also celebrated its 1000th day of being vacant. President Obama nominated Georgia attorney Jill Pryor more than fifteen months ago to fill Birch’s seat on the United States Court of Appeals for the Eleventh Circuit. Yet, thanks to an outdated Senate committee rule and a tradition rooted in a past era of corruption and patronage, Pryor’s nomination has not even received a hearing. Unless the rule is changed, it is possible that no nominee to this vacant seat will ever receive a hearing so long as a Democrat occupies the White House.
The roots of Pryor’s dilemma are found in a patronage system that was largely dismantled during the Carter Administration. Although the Constitution gives the president power to name judges “with the advice and consent of the Senate,” for much of American history lower court judgeships were often treated as little more than patronage jobs to be doled out by senators. As one opponent of this system described it in 1978:
[A] senator from the state where the nominee will serve selects the person and informs the president. After a background check by the F.B.I. and review by the Bar Association’s committee, the president usually submits the name of the nominee to the Senate. The Senate Judiciary Committee, in turn, returns the name to the senator asking permission, in effect, to conduct hearings. If the nominee is the same person the senator originally nominated, the committee holds hearings and votes on whether to confirm. If the senator’s selection was not forwarded by the president, he usually has an opportunity to kill the nomination.
During his term in office, President Jimmy Carter sought to replace this patronage system with a “United States Circuit Judge Nominating Commission” that selected judges on the basis of merit. President Ronald Reagan abolished this commission early in his presidency, but he also centralized much of the judicial selection process within his administration. The result of the Carter and Reagan presidencies was a permanent shift away from the patronage system of the past to a more modern system where president is the primary actor in judicial selection.
Two relics from the old patronage days remain, however. The first is that seats on the federal appeals courts are considered bound to a particular state. Because federal appeals courts typically preside over multiple states — the Eleventh Circuit has jurisdiction over cases arising out of Florida, Alabama and Georgia — the seats on these appeals courts were also tied to particular states. So if a federal appellate judge from Georgia retires, the new nominee must also be from Georgia.
Indeed, a minor war once broke out between President George W. Bush and Sen. Dianne Feinstein (D-CA) after Bush nominated an Idaho resident to replace a Ninth Circuit judge who moved from California to Idaho after being appointed to the bench. Although Idaho and California are both in the Ninth Circuit, Feinstein insisted that a seat that began as a California seat must ever remain a California seat. This conflict was eventually resolved after Bush’s nominee was renominated to a different seat on the same court that all the parties agreed was an Idaho seat.
The second relic of the old patronage system is the “blue slip” process, which allows a single senator to prevent a judicial nominee from their home state from receiving a committee hearing, effectively vetoing the nomination.
In conjunction, these two relics enable Georgia Sens. Saxby Chambliss (R) and Johnny Isakson (R) to prevent Jill Pryor, or anyone else nominated to Judge Birch’s former seat on the Eleven Circuit, from being confirmed forever — or at least until a president they like better occupies the White House.
Similarly, there are now two Texas seats open on the Fifth Circuit and six other Texas judgeships vacant on federal district courts. Thanks to the legacy of the pre-Carter patronage system, these seats will remain vacant unless candidates emerge that are acceptable to both President Obama and to the state’s two staunchly conservative senators. Considering that one of those senators once claimed that communists infiltrated Harvard Law School, it is reasonably likely that no such candidates actually exist.
Senate Judiciary Chair Patrick Leahy (D-VT) does have the power to end this impasse, however. In 2003, then-Judiciary Chair Orrin Hatch (R-UT) abandoned the blue slip rule in favor of a looser standard that allowed judicial nominations to move forward “provided that the Administration  engaged in pre-nomination consultation with both of the home-state Senators.” By implementing the Hatch Rule today, Leahy can help eradicate one of the remaining legacies of the old patronage system.