Last week, the House Judiciary Committee's Subcommittee on the Constitution held an important hearing (albeit one overlooked by the floor debate on the Iraq resolution), entitled "A Judiciary Diminished is Justice Denied: The Constitution, the Senate, and the Vacancy Crisis in the Federal Judiciary." Although there is nothing unusual in House subcommittee's holding hearings, this one was rather extraordinary — a committee of the House of Representatives inquiring into a matter textually committed solely to the other body, the Senate of the United States.
At first blush, one might be tempted just to treat the hearing as merely an attempt to shed some much-needed publicity on the stalemate, now approaching constitutional crisis magnitude, that has occurred in the Senate and, more particularly, in the Senate's Judiciary Committee. But the House of Representatives actually has a substantive role to play in judicial confirmation stalemate, both out of its customary role to oversee all aspects of the government's operation, and more importantly, to offer a legislative solution to the current crisis.
One of the key statistics in what has become a battle of competing statistics is the vacancy rate on the federal Courts of Appeals, which now stands at the near-record level of 15.1%. It's as if Senator Leahy believes himself vested with a line item veto power, which he has used to redline 27 of the 179 circuit judgeships out of existence. One need only recall that the full complement of circuit judgeships have not only been authorized but mandated by law, duly enacted by both Houses of Congress and signed by the President, to appreciate the House's legitimate interest in seeing that that law not go un-enforced.
But the House has an even more profound role to play in resolving the current crisis, if it chooses to do so. Article II, Section 2 of the Constitution requires Senate confirmation for appointment of all principal officers, but "Congress may by Law vest the appointment of â€¦ inferior officers" — including, as a matter of the Constitution's text, all lower court judges — "in the President alone, in the Courts of Law, or in the Heads of Departments." As the text specifies, this can be done "by law," which means the House of Representatives can initiate legislation that would vest in the President alone the sole power to appoint lower court judges whenever the Senate has failed either to confirm or reject the President's nominees in a reasonable period of time, say, six months. Given that in 1998 Senator Leahy himself proposed legislation that would have required the Senate to act on all nominations pending for more than 60 days before it took a ten-day or longer recess, he should not have any trouble supporting such legislation.
Not that we should really expect consistency from the good Senator. The ideological stakes are simply too high for the intellectual left, whose last redoubts of power are in the courts and, apparently, in the Senate Judiciary Committee. President Bush's nominees must be opposed at all costs, in the left's view, not because they are unwilling to uphold the law from the bench — a truly disqualifying judicial temperament — but precisely because they would uphold the law as written rather than bending it to fit the left's latest jurisprudential fad. Legislation such as I have proposed would expose Senator Leahy's strategy to refuse committee votes or even hearings to President Bush's nominees for what it really is — opposition to extremely well-qualified candidates who enjoy majority support in the Senate and who are therefore perfectly within the mainstream of American jurisprudential thought, contrary to the frequent slanders leveled against them by Senator Leahy and some of his colleagues.
Moreover, it would force a return of the advice and consent role to the place where the Constitution assigns in — to the Senate as a body rather than to an individual Senator or committee. As the American Bar Association's House of Delegates noted in an extraordinary resolution adopted this past August, "The notion that the Committee, by the simple expedient of refusing to hold timely hearings may avoid confirmation proceedings in the full Senate, is simply unacceptable to our notion of an appropriate and constitutional nomination process." Indeed.
Assigning the appointment power to the President alone after six months of inaction by the Senate would not unduly interfere with internal procedures of the Senate. The committee system would still have its role to play, but that role could not be abused by abject refusals to even hold hearings or votes on nominees who enjoy majority support. There would even be a place for a "blue slip" policy, the deference to home state Senators originally conceived as a matter of Senatorial courtesy. But the courtesy would have to play out with a floor vote, and therefore would only be extended when the blue slip had been cast legitimately and in the light of day rather than, as now, for the basest of political motives in the darkness of a Senate cloakroom.
But whether or not the Senate's internal procedures might be affected, some check on the abuses of the advice and consent power that we are currently witnessing has to be adopted. Nothing less than the independence of the judiciary, and ultimately the Rule of Law itself, is at stake.