Remarks on the Judicial Confirmation Process

Thank you all very much. Thank you, Al. He's—everybody must have a good lawyer, and I got one in Al Gonzales.

I want to welcome you all here to the White House. Thank you for coming.

The Federal courts play a central role in American justice, protecting the innocent, punishing the guilty, resolving disputes, and upholding the rule of law. Yet, today, our Federal courts are in crisis. The judicial confirmation process does not work as it should. Nominees are too often mistreated; votes are delayed; hearings are denied. And dozens of Federal judgeships sit empty, and this endangers the quality of justice in America.

Everyone knows these facts. Everyone knows the system isn't working. These concerns are not new, and we will not find a solution in an endless cycle of blame and bitterness.

Today I'm proposing a clean start for the process of nominating and confirming Federal judges. We must have an evenhanded, predictable procedure from the day a vacancy is announced to the day a new judge is sworn in. This procedure should apply now and in the future, no matter who lives in this house or who controls the Senate. We must return fairness and dignity to the judicial confirmation process.

I want to thank the Judge, Al Gonzales, for working on this initiative, and I want to thank his team for working hard. I appreciate John Ashcroft's service to our country. He is a great Attorney General, and I'm not saying that just because his wife and her twin sister are here. [Laughter]

I'm so pleased that Ted Olson, the Solicitor General, is with us. I thank Fred Fielding, the former counsel to President Ronald Reagan. Boyd Gray is with us, former Counsel to Number 41. Dennis Archer is with us today, president-elect of the American Bar Association and, of course, the former mayor of Detroit. Mr. Mayor, thank you for coming. Thomas Hayward, chair of the Committee of Federal Judicial Improvements for the American Bar Association, and all of you, thank you for your interest in this subject.

Nearly 18 months ago, at an event right here in the East Room, I introduced my first 11 nominees to the court of appeals. I urged Senators of both parties to provide a fair hearing and a prompt vote to each nominee. Thus far, only 3 of these 11 nominations have been brought to a vote in the United States Senate.

The eight who are stalled in the Judiciary Committee include people such as John Roberts. John Roberts has argued 38 cases before the Supreme Court. He has served as Deputy Solicitor General of the United States. He's widely regarded as one of the best Supreme Court lawyers in America.

And they include Miguel Estrada, who has argued 15 cases before the U.S. Supreme Court and has served in the Justice Department, under Presidents of both political parties, as a Federal prosecutor and as the Assistant to the Solicitor General.

The Judiciary Committee has prevented full Senate action on people such as Priscilla Owen, who has served brilliantly on the Texas Supreme Court since 1995 and was overwhelmingly reelected by the people of Texas in the year 2000.

Mr. Roberts, Mr. Estrada and Justice Owen have the highest ratings from the American Bar Association, which some Democrat Senators have called "the gold standard." They have broad support among lawyers in both political parties. Both Mr. Roberts and Mr. Estrada have the support of former President Clinton's Solicitor General. Justice Owen is supported by three former Democrat justices of the Texas Supreme Court.

In all, I have sent to the Senate 32 nominees for the court of appeals. They are well-qualified men and women with experience, intelligence, character, and bipartisan home-State support. They represent the mainstream of American law and American values. Yet the Senate has confirmed only 14 of these 32 nominees, which is far below the pace of past Senates at the start of an administration. It's a lousy record. Not one of my nine pending nominees to fill vacancies on the Sixth and DC Circuit Courts has received a Senate vote—not one. As of November, 15 of my appeals court nominees will have been forced to wait over a year for a hearing. That's more in this Presidency than under the previous nine Presidents combined.

There's no good reason why any nominee should endure a year, a year and a half, or more without the courtesy of an upor-down floor vote. There is not one good reason why. Whatever the explanation, we clearly have a poisoned and polarized atmosphere in which well-qualified nominees are neither voted up or down; they are just left in limbo. This is unfair to the nominees and their families. This process discourages good people from serving as judges. It's also unfair to the courts themselves, which are forced to handle a growing caseload without the judges they need.

Nine percent of all Federal judgeships in America are now vacant—9 percent. Of the 12 regional courts of appeals, the courts right below the Supreme Court, there is a 17-percent vacancy rate. The Court of Appeals for the DC court, which rules on many significant Constitutional and regulatory issues, now operates with one-third of its judgeships empty. And the Sixth Court of Appeals, which covers Kentucky and Ohio, Michigan and Tennessee, is nearly half empty, with 9 active judges doing the work of 16.

Meanwhile, the number of Federal appeal court filings reached an all-time high this year. Benches are empty; the number of court filings has increased to an all-time high. We can expect them to increase even further as a result of the war on terror, corporate fraud prosecutions, and issues arising out of the September the 11th attacks.

If the judicial vacancies go unfulfilled, we will see more crowded dockets and longer delays. The Federal courts will be unable to act in a timely manner to protect constitutional rights, to resolve civil disputes, and enforce the criminal laws, the environmental laws, and the civil rights laws that affects the lives and liberties of every single American. Chief Justice Rehnquist has called this situation alarming. The American Bar Association's report has described the current status of the Federal judiciary as an emergency situation.

The judicial crisis is the result of a broken system, and we have a duty to repair it. I want to work with the Senate to fashion a new approach to filling Federal court vacancies. We should leave behind the arguments and grievances of the past. We need to fix this problem together. That's why we've come to Washington, to fix problems, and each branch of Government can contribute, and must contribute, to a better system.

So today I'm offering four specific proposals to break the logjam in Washington and bring the Federal courts of appeals and district courts to full strength.

First, I call on Federal judges on the courts of appeals and district courts to notify the President of their intention to retire at least a year in advance, whenever this is possible. Because the nomination and confirmation of a Federal judge is a lengthy process under the best of circumstances, judges who retire without advance notice can unintentionally create a judicial vacancy that can last for many months. The request for one year advance notice builds on existing policy of the judiciary and will help us work toward a system in which a new Federal judge is ready to take the bench on a day the sitting judge retires. That's the goal.

Second, I propose that Presidents submit a nomination to the Senate within 180 days of receiving notice of a Federal court vacancy or intended retirement. In other words, we have a responsibility as well to make sure the judiciary is sound and whole. This will speed up the sometimes time-consuming process of obtaining recommendations and evaluations from home-State Senators and Representatives and Governors and bar leaders, while leaving ample time for Presidents to vet and choose nominees of the highest quality.

Third, I call on the Senate Judiciary— Senate Judiciary Committee to commit to holding a hearing within 90 days of receiving a nomination. A strict deadline is the best way to ensure that judicial nominees are promptly and fairly considered, and 90 days is more than enough time for the committee to conduct necessary research before holding a hearing. That's plenty of time.

Finally, I call on the full Senate to commit to an up-or-down floor vote on each nominee no later than 180 days after the nomination is submitted. This is a very generous period of time that will allow all the Senators to evaluate nominees and have their votes counted.

Our proposals would not favor Democrats or Republicans. The plan would be fair and would apply to—regardless of who the President is. It doesn't matter who the President is. What matters is a system which works.

For the first time in years, the judicial confirmation process would work as it was intended to work. All Senators would have a chance to make their voices heard and their views known, and that's important. All nominees would have the certainty of an up-or-down Senate floor vote within a reasonable period of time, and that is important. All Presidents would know that their judicial nominations would be addressed promptly. All Americans would see a more dignified process and have their Federal courts fully staffed to protect their rights and their liberties. And the vacancy crisis would be resolved once and for all.

I urge every Member of the Senate, in particular those serving on the Judiciary Committee, to carefully consider this new beginning for the judicial nomination process, to weigh their responsibilities, to look at the vacancy problem we have, to act in a responsible fashion.

The failure of the judicial confirmation process is harming the administration of justice in America. That is a fact. The current state of affairs is not merely another round of political wrangling. It is a disturbing failure to meet our responsibilities under the Constitution. The Constitution has given us a shared duty, and we must meet that duty together.

Thank you all for coming.