What Senate Deference On Lower-Court Nominations Meant

... and how far the Senate has moved away from that practice

Let’s step back and take a look at the broader picture of lower-court judicial nominations three decades ago, during my first two years as a Senate Judiciary Committee staffer for Senator Orrin Hatch, the ranking (lead) Republican on the Committee.

I’ve highlighted the battles that Hatch led against Bill Clinton’s nominations of Rosemary Barkett and Lee Sarokin to federal appellate seats in 1993 and 1994. But those two battles were notable exceptions.

Republican senators in those years remained wedded to the deference model on judicial nominations. Under that model, senators in deciding whether to support or oppose judicial nominations made by a president of the opposing party will, within very broad limits, ignore or demote considerations of judicial philosophy and focus primarily on whether the nominee meets some suitable standard of intellect, character, and experience.

Many commentators treat the deference model as though the senatorial restraint that it seems to entail is especially admirable. But as I’ve outlined, senators likely found it appealing for the simpler reason that, in the politics of the time, it served their individual interests in getting re-elected.

In any event, the deference model prevailed on lower-court judicial nominations (as well as on the Ginsburg and Breyer nominations) in 1993 and 1994.

Deference has its limits, and most Senate Republicans (and even some Democrats!) soundly concluded that Barkett and Sarokin exceeded those limits. But even as Republicans on the whole were strongly opposed to both nominations, they had no interest in trying to filibuster them. The filibuster—the effort to garner the 41 votes needed to prevent cloture on a nomination—was universally regarded as an illegitimate tool to use against judicial nominees.

I will highlight here three features that characterize judicial confirmations under the deference model: pervasive use of voice votes; rapid processing of nominations; and modest assertion of the “blue slip” privilege.

(1) On January 1, 1993—on the cusp of Clinton’s inauguration—there were 17 vacancies in federal appellate seats and 90 vacancies in federal district seats (as well as one “future vacancy”—a declared intention to vacate a seat in the future—in each category). In 1993 and 1994, the Senate confirmed 19 appellate judges and 107 district judges.

All of the nominees except Barkett and Sarokin—124 in total—were confirmed by so-called voice vote. As the Senate website explains:

In a voice vote the presiding officer states the question, then asks those in favor to say "yea" in unison and those against to say "nay." The presiding officer announces the results according to his or her best judgment. In a voice vote, the names of the senators and the tally of votes are not recorded.

Voice votes on nominations occur only when every senator has waived the right to a roll-call vote. So every Republican senator, even the most conservative, allowed all of those nominations to proceed to confirmation without a recorded roll-call vote. Every Republican senator likewise waived the right to a preceding vote on cloture as well as to the 30 hours of post-cloture debate that the Senate rules formally allowed.

In practice, the voice vote is usually pro forma: There might be just a few senators on the floor, and all the senators have already effectively consented to the confirmation.

Under the voice-vote procedure, large numbers of judicial nominees could be confirmed in about as long as it took for the senator presiding over floor action to say their names. To take just a couple of examples: 18 nominees were confirmed on a single day in November 1993, and another 24 on a single day in October 1994—just a month before the elections that would hand control of the Senate to Republicans.

(2) The vast majority of these judges were confirmed very speedily, especially when you take into account that the Breyer confirmation process occupied the committee’s attention in the spring of 1994. (The Ginsburg process finished before Clinton made any lower-court nominations.) For appellate nominations, the process usually took less than four months from beginning to end. For district-court nominations, the process was generally even faster—in many instances, less than a month or two.

(3) The “blue slip” refers to the piece of paper that the chairman of the Judiciary Committee sends to a senator informing him that the president has made a nomination to a position in his home state and inviting him to object or offer support. A senator who objects can express his objection on the blue slip (a “negative blue slip”) or can simply decline to return the blue slip. For district-judge nominations, committee chairmen of both parties have generally regarded negative or unreturned blue slips as having the force of a veto. For appellate nominations, the weight of a negative or unreturned blue slip has varied over time.

I will address the evolution of the committee’s blue-slip policy more fully down the road. For present purposes, I will simply observe that I see no evidence that Republican senators made aggressive use of their blue-slip privilege in 1993 and 1994.

On appellate nominations, we have already seen how Senator Connie Mack of Florida not only allowed Rosemary Barkett’s nomination to the Eleventh Circuit to go forward but even affirmatively supported it. The three appellate vacancies that Clinton started off with but hadn’t filled by the end of 1994 were all in states (California, Louisiana, and Ohio) that had two Democratic senators, so Republican recalcitrance wasn’t the cause of any delay.

Republican senators also appear to have been accommodating on district-court nominations. For example, Clinton appointed seven district judges in Texas in 1993 and 1994. It’s true that there were three Texas vacancies at the start that did not get filled. But there were also two such vacancies in California and one in Tennessee—states with two Democratic senators. If the Texas senators were playing hardball on the blue slip, they would not have allowed seven Clinton nominees to go through.

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To see how things have changed since Clinton’s first two years, let’s take a quick look at Donald Trump’s and Joe Biden’s first two years as president on these same three features. (I’m including both Trump and Biden, lest I be thought to be making a partisan point.)

Have in mind that in the intervening years, Senate Democrats first launched the partisan filibuster as a tool to defeat George W. Bush’s nominees, then abolished the filibuster when Senate Republicans returned the favor (to a lesser measure) against Barack Obama’s nominees. One other significant development is that in 2019 Senate Republicans reduced post-cloture debate time on district-court nominees from thirty hours to two hours.

(1) There has been a dramatic shift away from voice votes to roll-call votes on both cloture and confirmation.

All 30 of Trump’s appellate judges faced roll-call votes on confirmation, with 18 of them getting more than 40 negative votes. A full 25 of them also faced roll-call votes on cloture, again with many getting more than 40 negative votes.

Of Trump’s 53 district-court nominees, 27 had roll-call votes on confirmation and 35 (if my quick count is right) on cloture. While 26 were confirmed on voice vote, in most or all such cases majority leader Mitch McConnell was able to extract that concession only by negotiating packages of nominees from both blue and red states and by threatening to keep the Senate in session into a scheduled recess. What’s more, the number of district-court nominations was relatively low (before the 2019 reform) precisely because Senate Democrats threatened to tie up the Senate by using 30 hours of post-cloture debate time on nominees.

Biden’s first two years displayed the same huge shift away from the voice-vote confirmations that predominated in Clinton’s first two years. All 28 of his appellate nominees had roll-call votes on confirmation, with 21 getting more than 40 negative votes, and all also had similar roll-call votes on cloture. All but two of Biden’s district-court nominees had roll-call votes on confirmation—only two, that is were confirmed by voice vote—and all but a small handful of these also faced roll-call votes on cloture.

(2) Because of the filibuster, the delays in confirmation were much longer during the Bush and Obama years than during the Trump and Biden years. The abolition of the filibuster made the pace of confirmations quicker—when the president’s party was in control of the Senate, that is. But even then, the process was markedly slower than it had been in 1993 and 1994.

In 2017 and 2018, the Senate confirmed 30 of Trump’s appellate nominees and 53 of his district-court nominees. Roughly half of the appellate nominations took longer than five months. The delays were much worse for district-court nominees, as confirmation periods from six months to over a year were common.

In 2021 and 2022, the Senate confirmed 28 of Biden’s appellate nominees and 68 of his district-court nominees. Biden’s pace of appellate nominations, while somewhat better than Trump’s, was still worse than Clinton’s. Ditto on district judges, even with the huge benefit of the 2019 reduction in post-cloture debate time.

(3) Home-state senators on both sides of the aisle have become much more aggressive over the past thirty years in using the negative blue slip—or the preemptive threat of a negative blue slip—for ideological reasons. In late 2017, Senate Judiciary Committee chairman Chuck Grassley demoted the blue slip on appellate nominations: So long as the White House had consulted with home-state senators, Grassley would proceed with action on appellate nominations in the face of a negative blue slip. Current committee chairman Dick Durbin has recently even threatened to eviscerate the blue slip on district-court nominations.

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I will explore in future posts how and why the confirmation process for lower-court judges has changed so dramatically.