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Our constitutional system for choosing federal judges has hit an impasse. Public confidence in the Senate confirmation process has declined, while the inordinate number of judicial vacancies has caused corresponding delays in federal court dockets. For the benefit of those seeking legal redress and for citizens generally, we in the Senate can and must act to remedy this unacceptable situation. The solution lies in something as straightforward — and nonpartisan — as a series of scheduled steps leading to a full Senate vote on each and every nominee. It was another series of steps that led to the current gridlock in confirming federal judicial nominees: President George W. Bush failed to win the popular vote in the 2000 presidential election, with the contest essentially decided in the U.S. Supreme Court. The president nominated for the federal bench several prominent individuals with judicial philosophies similar to the president’s views. Sen. James Jeffords of Vermont left the Republican Party, ceding control of the Senate to the Democratic Party. Now the Democrats directing the Senate have refused to appropriately act on Bush judicial nominations — in several cases, for more than a year — in much the same way that Clinton judicial nominees were treated for six years by a Republican-controlled Senate. This reciprocal partisan treatment has in turn created an even deeper division in a Senate already deeply divided in light of the disputed 2000 election and the Jeffords defection. Advocacy groups with vested interests in the makeup of the judiciary have continued to wage negative campaigns against nominees, prompting at various times the invocation — and sometimes abuse — of the time-honored tradition of senatorial courtesy to delay or defeat nominations. Article II, Section 2, of the Constitution tells us that 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.” The Senate is thus a critical part of the process for naming federal judges. Unfortunately, the advice-and-consent power is applied in an arcane and ad hoc practice that lacks any set time lines — and therefore is subject to abuse. A TIMETABLE AT LEAST All too often of late, where a president of one political party has submitted a judicial nomination to a Senate controlled by the opposite party, that nomination has been subjected to partisan treatment not focused solely on the nominee’s qualifications for the federal bench. This has been the case regardless of which party controlled the White House and which party controlled the Senate. Individual senators and committee chairmen have taken advantage of the ad hoc process to cause excessive delays in considering nominees. Some nominees have not even received a hearing. At other times, the Committee on the Judiciary — acting along party lines — has prevented the full Senate from exercising its constitutional duty to vote on all judicial nominations. While confirmation disputes have often been resolved by back-room arrangements among the Senate leadership, these deals themselves have tended to undermine the legitimacy of the confirmation process in the public’s eyes. I have suggested a simple Senate rule change — a nominations protocol — that would establish a timetable for confirmations. My nominations protocol provides that the chair of the Senate Judiciary Committee, in consultation with the ranking member, set a specific timetable for committee action on each nominee. A certain number of days after a nomination is submitted by the president, a hearing would be held, and within a certain number of additional days there would be a vote by the Judiciary Committee on whether to report the nominee to the full Senate for its consideration. Then, the majority leader of the Senate, in consultation with the minority leader, would agree upon a timetable for floor action so that, within another specified period of time, there would be a vote by the full Senate. Additionally, my protocol requires that a nomination would proceed to the Senate floor if the nominee were rejected in committee on a party-line vote. The recent nomination to elevate U.S. District Judge Charles Pickering Sr. of Mississippi to the 5th U.S. Circuit Court of Appeals is an instance where a nomination, rejected by the Judiciary Committee on a 10-9 party-line vote, was not reported to the full Senate for consideration. It is likely that Pickering would have been confirmed by the full Senate. Thus the Democrats’ refusal to allow the full Senate to consider his nomination did not conform to the Constitution, which calls for the Senate — not simply a committee — to make the decision to accept or reject federal judicial nominees. I believe that any president, notwithstanding his political persuasion, should be accorded a certain degree of deference in his judicial nominations. Neither the text of the Constitution nor any contemporaneous or subsequent history says anything about the ability of one senator or one committee to defeat a judicial nomination by the president. To the contrary, in “Federalist 76,” Alexander Hamilton made clear that this constitutional function was to be exercised by the Senate as a whole, which would serve as a check upon unwise appointments. Each and every senator should participate in bringing the collective wisdom of the Senate to bear on judicial nominations. If one senator or one committee has the de facto power to block a nomination, then the advice-and-consent clause of the Constitution is rendered virtually meaningless. Reporting a nomination to the full Senate even absent a majority vote in committee also has historical support under Senate practice. Since 1950, six lower court nominees have been sent to the full Senate even though they did not receive an affirmative vote in the Judiciary Committee. Similarly, under my protocol, any Supreme Court nominee would be reported to the full Senate irrespective of the committee vote. This conforms with recent Senate practice: In 1991, the nomination of Judge Clarence Thomas to be an associate justice failed to receive a majority vote (7-7) in the Judiciary Committee, yet was reported to the full Senate, which confirmed him, 52-48. Another Supreme Court nominee, Judge Robert Bork, received a negative vote (9-5) in the Judiciary Committee, but his nomination was still sent to the Senate floor — and was ultimately defeated, 58-42. To ensure that ample discretion is retained at the committee level, the timetables under my protocol could always be extended for cause, such as the need for more investigation or additional hearings. While it is presumed that the White House will adequately consult with senators from the judicial nominee’s home state, a failure to consult — in and of itself — should not be considered sufficient cause to indefinitely delay a judicial nomination. JUDGES DELAYED Besides the constitutional concern, a vital pragmatic consideration underlies the need for my protocol. According to both sitting federal judges and their court executives, filling vacancies is the most pressing issue facing our lower courts — due to the correlation between judicial vacancies and delays in processing cases. For example, look at the 6th Circuit. The court’s 50 percent vacancy rate has left a death penalty appeal pending for more than eight years, while a plaintiff in a civil case died after having waited more than 15 months just to have oral arguments in a job discrimination suit. Egregious delays can also be found in the 4th Circuit, where more than a quarter of the seats are unfilled despite four declared judicial emergencies and one seat being vacant for eight years. Meanwhile, simple appeals languish. A municipality in South Carolina has been waiting 39 months for clarification of the constitutionality of its ban on the docking of longline fishing vessels at the local marina. A routine Longshoreman’s Act claim has been pending for 38 months. It is difficult to conceive of a fully occupied court that could not dispose of such mundane cases in more than three years. These anecdotal examples are representative of a much broader and most disturbing pattern of easily avoidable judicial vacancies and emergencies. The situation is unacceptable, and the Senate has a constitutional responsibility to act. My proposed protocol would provide a nonpartisan way to fill judicial vacancies with due care but without undue political influence. Arlen Specter is the senior U.S. senator from Pennsylvania, a Republican and a member of the Senate Judiciary Committee.

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