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Introduction
The interactions and relationships between the federal courts and Congress are important for understanding the role of the judiciary in the larger American separation of powers system.
As Clark has reminded us, “Separation of powers represents perhaps the most important contribution the American experiment has made to constitutional democracy throughout the world.” Tom S. Clark, The Limits of Judicial Independence 1 (2011).
This Article explores the broader question of court-Congress interactions with a focus on the Senate Judiciary Committee. The Senate Judiciary Committee has jurisdiction over most court-related, legal, and constitutional matters, and it plays the primary role in the confirmation process for federal judges. Many would argue that it has the closest relationship to the federal courts of all the committees in the Senate. A key component in the inter-institutional relationship is the approach taken by the chair of the committee. It is worth looking at court-Congress interactions through the lens of congressional committees because committees matter a great deal in Congress. As Woodrow Wilson in 1885 famously observed, “Congress in session is Congress on public exhibition, whilst Congress in its committee-rooms is Congress at work.”
Woodrow Wilson, Congressional Government (1885).
This Article examines court-Congress interactions using a Historical Institutionalist framework, which is one branch of new institutionalist analysis.
See e.g., Paul Pierson & Theda Skocpol, Historical Institutionalism in Contemporary Political Science, in Political Science: The State ofthe Discipline (Ira Katznelson & Helen V. Milner, eds., 2002).
In Historical Institutionalism, political scientists and other scholars explore how over time “institutional cultures, structures, rules, and norms constrain the choices and action of individuals when they serve in a political institution.”
Mark C. Miller, Judicial Politics in the United States 185 (2015).
For example, Gibson has summarized the study of judicial behavior using new institutionalist models in this way, “In a nutshell, judges’ decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do.”
James L. Gibson, From Simplicity to Complexity: The Development of Theory in the Study of Judicial Behavior, 5 Am. Pol. Behav. 7, 9 (1983).
The same concept would apply to the study of legislators. The assumption is that political institutions may develop new norms, traditions, and functions as they interact with other institutions and refine their institutional relationships.
See Howard Gillman & Cornell W. Clayton, Beyond Judicial Attitudes: Institutional Approaches to Supreme Court Decision-Making, in Supreme Court Decision-Making: New Institutionalist Approaches 6–7 (Cornell W. Clayton & Howard Gillman, eds., 1999).
The Historical Institutionalism approach allows scholars to consider the big picture questions that narrower studies often cannot address. As Pierson and Skocpol explain, “historical-institutional scholars address big, substantive questions that are inherently of interest to broad publics as well as to fellow scholars.”
For our purposes, the big questions mean examining court-Congress interactions in general as well as the more specific relationship between the Senate Judiciary Committee and the federal courts. These big picture questions can tell us a lot about how institutional cultures and norms affect political decision-making in our governmental institutions. As these scholars continue, “Researching important issues in this way, historical institutionalists make visible and understandable the overarching contexts and interacting processes that shape and reshape [nations], politics, and public policymaking.”
Id. at 693.
In order to understand how institutional variables constrain the decisions made by legislators in Congress, I conducted elite interviews with people who served on or worked closely with the Senate Judiciary Committee, and for the sake of comparison the House Judiciary Committee as well. I interviewed U.S. Representatives, legislative staff members in both the U.S. Senate and the U.S. House, federal judges, lobbyists familiar with the two committees, staff in think tanks that deal with Congress-court relationships, and academics who have studied judicial-legislative interactions. These semi-structured interviews occurred in Washington, D.C. over three different periods of time: 1989
For all of my interviews in all three time periods, I promised the participants that I would not reveal their names nor the identities of their employers. For an analysis of these 1989 interviews, see Mark C. Miller, The High Priests of American Politics: The Role of Lawyers in American Political Institutions (1995).
, 2006–2007,
A discussion of these 2006–2007 interviews can be found in Mark C. Miller, The View ofthe Courts from the Hill (2009).
and 2017–2018.
Analysis of these 2017–2018 interviews can be found in Mark C. Miller, A Comparison of the House and Senate Judiciary Committees and Their Relationships to the Federal Courts, 44 Seton Hall Legis. J. 207 (2020).
Instead of surveying the interviewees strictly for their opinions and then aggregating those views, these semi-structured interviews were designed to elicit the interviewees’ expertise about the institutional culture of the Judiciary Committees and how the committees interacted with the federal courts. These interviews were more like in-depth conversations where the participants often provided key information before I even asked for it. For example, my interviewees told me that lawyer-legislators were the key to understanding the relationships between the federal courts and the Judiciary Committees, something I had not considered before I started my interviews.
My interviewees also convinced me that the approach taken by the committee chairs is a key variable in understanding the relationship between the federal courts and the Judiciary Committees.
This type of empirical elite interviewing does not involve formal hypothesis testing because I had no preconceived notions of what I would hear from my expert interviewees. As Richard Fenno stated in one of his landmark studies of Congress, “Someone doing this kind of research is quite likely to have no crystallized idea of what he or she is looking for or what questions to ask when he or she starts.”
Richard F. Fenno, Jr., Home Style: House Members in Their Districts 250 (1978).
The quotations from my interviews illustrate how the experts understand the institutional factors that constrain the decision-making of the individuals who serve on the Senate Judiciary Committee when it interacts with the federal courts, both at the individual level of analysis and at the committee level of analysis. Using similar methods in his study of the Supreme Court's certiorari decision-making, Perry states, “Elite interviewing is a well-developed tradition in social science. … Done well, it is particularly useful for developing general understandings of processes, and it highlights assumptions that can be tested empirically.”
H.W. Perry, Jr., Deciding to Decide: Agenda Setting in the United States Supreme Court 8 (1991).
Courts and Congress
Since the relationship between Congress (and its committees) and the federal courts is one of the big picture questions that Historical Institutionalism attempts better to understand, this Article explores those institutional interactions. While many scholars have studied the courts and Congress separately, there are fewer efforts at examining how these two government institutions interact. Many judicial and congressional scholars have concluded that the study of the relationship between Congress and the federal courts is extremely important.
See, e.g., Judges and Legislators: Towards Institutional Comity (Robert A. Katzmann, ed., 1988), Charles Gardner Geyh, When Courts and Congress Collide: The Struggle for Control of America's Judicial System (2006); J. Mitchell Pickerill, Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System (2004).
As Kevin den Dulk and Mitchell Pickerill have argued, “treating the Court or Congress in isolation misconstrues the nature of inter-institutional lawmaking in the United States. The actions of each institution have important reciprocal effects; both contribute to the form and substance of law.”
Kevin R. den Dulk & J. Mitchell Pickerill, Bridging the Lawmaking Process: Organized Interests, Court-Congress Interactions, and Church-State Relations, 35 Polity 419, 420 (2003).
The relationship between the federal courts and Congress is not well understood by scholars, practitioners, or members serving in the two governmental institutions.
Michael A. Bailey et al., The Amorphous Relationship between Congress and the Courts, The Oxford Handbook ofthe American Congress 834 (Eric Schickler & Frances E. Lee, eds., 2011).
Our lack of understanding of the interactions between these two branches can have serious public policy ramifications because each institution plays a significant role in the legislative and policymaking process. As Pickerill explains, “Lawmaking in our separated system is continuous, iterative, speculative, sequential, and declarative . . . and consequently each institution in our system must necessarily anticipate, interact with, and react to the actions of the other institutions.”
Not only do scholars need a better understanding of the relationship between Congress and the courts, but also those serving in these two branches do not necessarily understand each other very well. As the late Judge Robert Katzmann argued, “Th[e] study of judicial-congressional relations is rooted in the premise that the two branches lack appreciation of each other's processes and problems, with unfortunate consequences for both and for policymaking more generally.”
In 2018, I interviewed an employee of a think tank who also recognized this problem, stating, “There is an inherent institutional distance between judges and legislators. There is a lack of understanding between the branches. Most Members of Congress only have a vague idea of what the federal courts actually do.”
Given this lack of understanding between the branches, it is not surprising that scholars’ understanding of the relationship between the two institutions is often fuzzy.
The constitutional relationship between the two branches is equally nebulous. As Michael Bailey, Forrest Maltzman, and Charles Shipan conclude,
Whereas Congress's relationship with the executive is spelled out in detail in the Constitution, the relationship between Congress and the judiciary was left by the founders to be defined by history. Since history is rarely tidy or consistent, the relationship that exists between the courts and Congress is as messy as the Constitution itself.
This messiness is also reflected in the ways that the Senate Judiciary Committee interacts with the federal courts.
The Senate Judiciary Committee plays a key role in attempts to restructure the federal judiciary. The relationships between the judiciary and Congress are especially important to study for students of judicial politics, “given the profound influence that the legislative branch of government has exerted on the very nature of the judicial branch.”
Congress working through its Judiciary Committees has the ultimate decision about how to structure the federal courts and their jurisdictions (the power to hear a case). Congress also decides how many judges will serve on each level of the federal judiciary, including the U.S. Supreme Court. For example, in 1977, 1984 and in 1990 Congress greatly expanded the number of judgeships on the U.S. District Courts (the federal trial courts), suddenly giving the then president many more judicial nominations than his predecessors.
John M. De Figueiredo & Emerson H. Tiller. Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J. L. & Econ. 435, 443 (1996).
Congress also sets the number of justices on the U.S. Supreme Court, and during and after the Civil War the Republican Congress altered that number several times to fit its political needs at the moment.
See Paul M. Collins, Jr. & Lori A. Ringhand, Supreme Court Confirmation Hearings and Constitutional Change 18 (2013).
By refusing to consider President Obama's nomination of Judge Merrick Garland to the Supreme Court, in effect the Republican Senate reduced the number of justices on the Court to eight for almost a year. With the U.S. Supreme Court now having a clear conservative majority, some liberals have recently called for an expansion of the size of the Court.
See e.g., Holly Otterbein, Liberal Groups Back Plan to Expand Supreme Court, Politico, June 11, 2020.
Congress also determines the boundaries of the U.S. Courts of Appeals, occasionally redrawing those boundaries for workload or ideological reasons. For example, following the lead of its Judiciary Committees, Congress in 1980 split the old Fifth Circuit Court of Appeals and moved the states of Florida, Georgia, and Alabama to the new Eleventh Circuit for both political and management reasons.
See Deborah J. Barrow & Thomas G. Walker, A Court Divided: The Fifth Circuit Court of Appeals and the Politics of Judicial Reform (1988).
Today, many conservatives would like to split up the current Ninth Circuit because of its perceived liberal decisions. When Republicans controlled the Senate Judiciary Committee, that committee held various hearings over the years on this issue.
See, e.g., Scott Bomboy, Drive to Split Ninth Circuit Faces an Uncertain Future, Const. Daily, Aug. 29, 2017, https://constitutioncenter.org/blog/drive-to-split-ninth-circuit-faces-an-uncertain-future.
The Judiciary Committee also considers constitutional amendments and other constitutional issues. In fact, the Judiciary Committees hold most of the hearings on constitutional questions in Congress. For example, from 1995–2009, the two Judiciary Committees held seventy-two percent of the constitutionally based hearings (or hearings in which constitutional issues are prevalent) in the legislative branch.
Neal Devins, Party Polarization and Congressional Committee Considerations of Constitutional Questions, 105 Nw. U. L. Rev. 737, 750 (2017).
At times, these hearings are evidence that the relationship between the Senate Judiciary Committee and the federal courts is conflictual. For example, in 2015 a Republican led subcommittee of the Senate Judiciary Committee held a very broadly entitled hearing called With Prejudice: Supreme Court Activism and Possible Solutions.
With Prejudice: Supreme Court Activism and Possible Solutions: Hearing Before Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts of the Senate Judiciary Committee, 114th Cong. (2015).
The hearing discussed a variety of ways to limit the voice of the federal courts and its power of judicial review. In late September of 2021, the Democratically controlled full Committee held a hearing entitled, Texas's Unconstitutional Abortion Ban and the Role of the Shadow Docket, in which the members attacked or supported the Supreme Court's decision that allowed a highly controversial Texas abortion law to go into effect while litigation over its constitutionality continued.
Texas's Unconstitutional Abortion Ban and the Role of the Shadow Docket: Hearing Before the Senate Judiciary Committee,117th Cong. (2021); see also Katie Benner, The Justice Dept. Sues Texas Over its New Restrictive Abortion Law. N.Y. Times, Sept. 9, 2021.
The Senate Judiciary Committee and the Broader Senate
Of course, the Senate Judiciary Committee functions within the broader constraints of its parent chamber. For example, the Senate has the same number of committees as the House with far fewer members to fill those committee slots. While House members concentrate on a small number of committees, Senators are often spread very thin among a large number of committee and subcommittee assignments. Senators often rely on staff for assistance in making committee decisions more than House members do.
Ross K. Baker, House & Senate 39 (4th ed., 2008).
On the other hand, the smaller size of the chamber also benefits Senators because almost every Senator in the majority party is a committee or subcommittee chair.
Barbara Sinclair, The New World of U.S. Senators, Congress Reconsidered 5 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 11th ed., 2017).
In general, Senators have the luxury of six-year terms and have large, usually heterogeneous constituencies within their states which often force them to be generalists who take a broad public policy view on many issues.
Committee assignments are handled by each party in each chamber, but members often request assignments to particular committees.
Randall B. Ripley, Congress: Process and Policy 155 (4th ed., 1988).
In the 1950s and 1960s, legislators saw membership on both policy-oriented Judiciary Committees as fairly desirable.
Morris Ogul, Congress Oversees the Bureaucracy 138–39 (1976).
Writing in the 1980s, Randall Ripley argued that the Senate Judiciary Committee was still one of the most attractive committees in the Senate. Beginning in the late 1980s, however, members started to leave the Senate Judiciary Committee. Chairman Joe Biden (D-DE) was especially concerned about member recruitment to the committee after the all-male and all-white committee voted to confirm Justice Clarence Thomas to the Supreme Court in 1991, despite Anita Hill's allegations of sexual harassment against him. Following the 1992 elections, Biden personally recruited the newly elected Senator Carol Mosely-Braun (D-IL), an African American woman, to the committee along with the newly elected non-lawyer Senator Diane Feinstein (D-CA). After spending only two years on the Judiciary Committee, Senator Mosely-Braun quickly left the Judiciary Committee when a spot on the Finance Committee opened up.
Christopher J. Deering & Steven S. Smith, Committees in Congress 82 (3d ed., 1997).
Senator Feinstein remained on the committee (and served as its ranking minority member from early 2017 until early 2021).
Marianne Levine & Burgess Everett, Dianne Feinstein to Step Down as Top Democrat on the Senate Judiciary Panel, Politico, Nov. 23, 2020.
Today, the Senate Judiciary Committee has a variety of female members in addition to Senator Feinstein, including several Republicans.
The Senate Judiciary Committee's deliberative and political culture generally reflects the political dynamics of its broader chamber, but the committee also tends to draw extreme members from both parties. As Neal Devins concludes, “Judiciary Committee polarization is more extreme than party polarization elsewhere because the Judiciary Committees tend to attract especially ideological lawmakers.”
Thus, minority party members of the committee use every possible procedural tactic to delay actions of the committee with which they disagree.
C. Lawrence Evans, Leadership in Committee: A Comparative Analysis of Leadership Behavior in the U.S. Senate 61–62 (2001).
As a Democratic Senate staffer summarized the situation for me in a 2017 interview, “The Judiciary Committee is less collegial than other committees in the Senate.”
Agreeing with this assessment, a staffer to the ranking minority member of the committee once noted, “The Judiciary Committee is a better reflection of the Senate floor than any other. Everybody uses their procedural rights. People divide up earlier, and it feels like the floor. There are fights; there's screaming and yelling; and people filibuster in committee.”
The Senate Judiciary Committee also attracts the attention of a wide variety of interest groups on all sides of the highly controversial issues under their jurisdiction.
George Goodwin, Jr., The Little Legislatures 102 (1970).
As Roger Davidson and Oleszek explain, “[t]he Judiciary Committees are buffeted by diverse and competing pressure groups that feel passionately on the volatile issues such as abortion, school prayer, and gun control. The committees’ chances for achieving agreement among their members or on the floor depend to a large extent on their ability to deflect such issues altogether or to accommodate diverse groups through artful legislation drafting.”
Roger H. Davidson & Walter J. Oleszek, Congress and its Members 218 (9th ed., 2004).
The fact that many of these interest groups care deeply about the decisions of the federal courts has certainly helped shape the relationships and interactions between the Senate Judiciary Committee and the federal judicial branch.
Floor rules in the Senate make it easier than in the U.S. House for individual Senators to bypass the committees and offer their policy preferences as amendments on the floor, even if those amendments are not germane to the underlying substance of the legislation.
Barbara Sinclair, The New World of U.S. Senators, Congress Reconsidered 9 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 11th ed., 2017).
The House, on the other hand, has a strict germaneness rule that requires all committee and floor amendments to legislation to be of a similar subject matter to the underlying bill.
Walter J. Oleszek et al., Congressional Procedures and the Policy Process 211–15 (10th ed., 2015).
The Senate also does not have the equivalent of the House Rules Committee, which in the House sets the terms of floor debate for all bills and regulates the number and source of amendments that members can offer on the floor.
David W Rohde, Committees and Policy Formulation, in The Legislative Branch 219 (Paul J. Quick & Sarah A. Binder eds., 2005).
The Senate has a filibuster rule, which requires sixty votes to invoke cloture and thus end debate on any measure subject to the filibuster.
Sarah A. Binder, Stalemate: Causes and Consequences of Legislative Gridlock (2003).
In general, the Senate Majority Leader controls when the Senate will debate what issues. In large part because of the ability of Senators to bypass committees and offer their amendments directly on the floor, most Senate committees are much weaker than the committees in the House, as is the committee system as a whole.
As Bryan Marshall and Bruce Wolpe note, “The Senate's small size, procedural prerogatives, and growing individualism have meant that the chamber's committees have had less power and have been less critical for achieving members’ goals than their House counterparts.”
Bryan W. Marshall & Bruce C. Wolpe, The Committee 43 (2018).
The Committee of Lawyers
The Senate Judiciary Committee (along with the House Judiciary Committee) has long been known as the Committee of Lawyers. Although focused on requests for the House Judiciary Committee in their longitudinal study of the committee assignment process, Frisch and Kelly's findings would seem to apply to both committees, “Lawyers, regardless of party or electoral status, are likely to request assignment to Judiciary.”
Scott A. Frisch & Sean Q. Kelly, Committee Assignment Politics in the U.S. House of Representatives 148 (2006).
While lawyers are clearly the largest professional group in Congress, they are even more over-represented on the Senate Judiciary Committee.
When counting lawyer members in Congress, I count all individuals with law degrees, as opposed to counting only those who list attorney or some other lawyer related field as their main occupation. I argue that even lawyer-politicians who have never practiced law nevertheless have been socialized into the profession through law school and thus “think like a lawyer.” See Miller, supranote 9, at 17–23.
At the end of the 115th Congress (2017–2018), there were 55 Senators with law degrees.
Jennifer E. Manning, Membership ofthe 115th Congress: A Profile 4 (2018).
But, in July of 2017, the Senate Judiciary Committee had only six non-lawyers among its twenty members (70% lawyers). In July of 2018, the Senate Judiciary Committee had only four non-lawyers among its twenty-one members (81% lawyers). In June of 2019, the Congressional Research Service reported that fifty-three Senators had law degrees,
Id. at 5.
but on the Senate Judiciary Committee 77% of the members were lawyers.
See the Senate Judiciary Committee website at https://www.judiciary.senate.gov/.
As of June 2021, 144 members of the U.S. House (33%) and 50 U.S. Senators (50%) had law degrees,
Jennifer E. Manning, Membership ofthe 117th Congress: A Profile 5 (2021).
but 68% of the members of the Senate Judiciary Committee had law degrees. Among these lawyer-legislators serving in Congress in 2021, it is worth noting that there were six former state Attorneys General (AG) serving in the full U.S. Senate and one in the U.S. House. In 2021, four of these former state AGs were serving on the Senate Judiciary Committee, plus one former state Solicitor General.
Id. at 3. The four members of the U.S. Senate Judiciary Committee as of July of 2021, who had served as AG for their respective states before running for the Senate, were Senators Whitehouse, Blumenthal, Hawley, and Cornyn, while Senator Ted Cruz was appointed as his state's solicitor general in the attorney general's office. Senate Judiciary Committee, Members, https://www.judiciary.senate.gov/about/members. State Solicitors General generally head the appellate practices in the offices of the state attorneys general. H.W. Perry Jr., The Elitification of the U.S. Supreme Court and Appellate Lawyering, 72 S.C. L. Rev. 245, 270 (2020).
These overall figures are part of a long downward trend in the number of lawyer-legislators in Congress, but nevertheless indicate that the legal profession is still well over-represented in the legislative branch
Bonica and Sen note that over American history, lawyers have comprised an average of 62% of the U.S. House and 71% of the U.S. Senate. Adam Bonica & Maya Sen, The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary 32 (2021).
and on the Senate Judiciary Committee.
The Senate Judiciary Committee has a generally lawyerly and almost court-like decision-making culture that is sometimes extremely partisan in nature and thus rife with conflict. Congressional staffers on the Committee (almost always lawyers themselves) have told me over the years that they preferred working with lawyer members of the committee. As one staffer explained in an interview in 1989, “Because of their training and discipline, lawyer members see the importance of nuance and wording. They also ask tougher questions of witnesses.”
In some ways, the lawyers on the committee are obvious. In 2017, a Democratic Senate staffer told me that his boss “loves being a lawyer,” mentions that fact quite often, and has even continued writing law review articles after his election to the Senate. Another staffer went on to note that it was easy to tell which members of the Senate Committee were lawyers because they often highlighted that fact in their public comments.
Even the non-lawyer members of the Judiciary Committee eventually learn to navigate the committee's lawyerlike and incrementalistic culture. In 2018, a Republican lawyer told me, “There aren’t a lot of differences between the lawyer and non-lawyer members. The lawyers and non-lawyers on the committee use the same language. The non-lawyers learn to talk like lawyers. Newer non-lawyers on the committee who haven’t yet adapted are more obvious.”
Id. at 241.
Reinforcing the view that the non-lawyers on the Committee learn to think and act like lawyers, a lobbyist told me, “Senator Feinstein, the ranking minority member of the Senate Judiciary Committee, is one of the best lawyers on the committee.”
Id.
The statement was, of course, meant to be ironic because Senator Feinstein is one of the few members of the Senate Committee who does not have a law degree, and the lobbyist was fully aware of that fact.
On the other hand, the differences between the lawyer-politicians and the non-lawyers on the committee sometimes become more noticeable. For example, one Democratic staffer told me, “The non-lawyer members of the committee rely more on the lawyers on their staff than the lawyer members do.”
Id. at 243.
Senator Chuck Grassley (R-IA) chaired the Judiciary Committee from 2015 until early 2019, and as mentioned previously Senator Diane Feinstein (D-CA) served as its ranking minority member from early 2017 until early 2021. Both were non-lawyers. In 2017, a former Democratic staffer on the Senate Judiciary Committee noted in an interview with me that, “It is quite obvious that Chairman Grassley and Ranking Member Feinstein are not lawyers. It is quite odd to have non-lawyers as both the chair and the ranking member.”
Id. at 241.
Not everyone, however, wants the committee to be made up exclusively of lawyers. As a former Senate staffer told me, “Sometimes it is quite useful to have a non-lawyer perspective on the Committee.”
Id. at 243.
Judicial Confirmations and the Blue Slip Process
Judicial confirmations are a very important point of interaction between the Senate Judiciary Committee and federal judges. The president appoints judicial nominees for all three levels of the federal courts for life terms, and the Senate must then confirm them. As Bell has keenly noted, “Presidents routinely fill more federal judgeships than any other office.”
Lauren Cohen Bell, Warring Factions: Interest Groups, Money, and the New Politics of Senate Confirmation 102 (2002).
Once the president nominates someone to be a federal judge, the Senate Judiciary Committee staff initiates an investigation of that individual. When that investigation is complete, then the committee chair will decide whether the committee will hold a hearing on the nomination. Generally, the nomination dies if there is no committee hearing.
Since the Eisenhower Administration, the tradition had been that presidents would submit the names of their nominees to the American Bar Association (ABA) before those names went public, and the ABA would privately rate the nominees as well qualified, qualified, or not qualified. However, Presidents George W. Bush, Donald Trump, and Joe Biden stopped seeking ABA ratings before the nominees were made public. Instead, the ABA ratings occur after the presidential nominees are announced, but before the Senate Judiciary Committee confirmation hearings occur.
Charlie Savage, Biden Won’t Restore Bar Association's Role in Vetting Judges, N.Y. Times, Feb 5, 2021.
Since 1939, most presidential nominees to the federal bench have faced confirmation hearings before the Senate Judiciary Committee before the nomination is considered by the full Senate.
Senators have often used these hearings as a mechanism to send signals to the potential judges about what past rulings they oppose and what kinds of future judicial decisions they would like to see. As Gerhardt explains, “Senators, and presidents, employ their authority over appointments to impress their constitutional views upon other institutions (and the public).”
Michael J. Gerhardt, The Federal Appointments Process: A Constitutional & Historical Analysis xxvi (2000).
At the hearings, Senators may ask a lot of questions about the nominees’ views on judicial activism and other judicial philosophies. Thus, the Senators are trying to figure out how the nominees may rule on future controversies. Today, most judicial nominees refuse to give direct answers to these questions.
Ross K. Baker, Strangers on a Hill: Congress and the Court 108 (2007).
In fact, the judicial confirmation process may affect future interactions between Congress and the courts. As Baker explains, “In recent years, justices of the Supreme Court have emerged badly battered from the polarized, partisan, and contentious confirmation process in the Senate, so it would not be surprising if they were to harbor lingering bitterness towards the politicians who subjected them to harsh and lengthy interrogation.”
Id. at 107.
The chair of the Senate Judiciary Committee generally has total control over if and when a judicial nomination will receive a hearing in the committee, although there have been times when the Senate Majority Leader has greatly influenced their decisions. For example, Senator Majority Leader Mitch McConnell (R-KY) refused to allow Senate Judiciary Committee Chairman Grassley (R-IA) to hold hearings on President Obama's nomination of Judge Merrick Garland to the U.S. Supreme Court in 2016. McConnell argued that the Senate should not consider a Supreme Court nominee during a presidential election year.
Neal Devins & Lawrence Baum, The Company They Keep: How Partisan Divisions Came to the Supreme Court 108–109 (2019). Speculating before the 2016 election that if President Trump did not win the presidential election, some of the Judiciary Committee members such as Senator Ted Cruz (R-TX) argue that the Committee should refuse to even consider Supreme Court nominees nominated by Hillary Clinton, thus potentially leaving the total membership of the Supreme Court at 8 for a lengthy period. See e.g., Aaron Blake, The GOP's Court-Stacking, Wash. Post, Oct. 12, 2020.
McConnell's role in halting the committee hearings for Judge Garland was confirmed in many of my more recent interviews.
On the other hand, in 2020 then Majority Leader McConnell was instrumental in pushing Judge Amy Coney Barrett's nomination to the U.S. Supreme Court through the Judiciary Committee and then through the Republican controlled full Senate in record time only days before the presidential election occurred.
Carl Hulse, How Mitch McConnell Delivered Justice Amy Coney Barrett's Rapid Confirmation, N.Y. Times, Oct. 27, 2020.
In addition to having almost complete control over the question of whether or not a nominee will get a hearing, the Judiciary Committee chair also has a great deal of power in determining other aspects about how the committee will approach the confirmation process. For example, the committee chair controls the witness list for the hearings, including what role interest groups will play in the hearing process for Supreme Court nominees but also for lower court nominees. Interest groups have long cared a great deal about Supreme Court nominees, but more recently they have also become key players in the confirmation process for lower court judicial nominees as well. As Scherer, Bartels, and Steigerwalt have written, “The decision by interest groups to conduct extensive research on the backgrounds and ideologies of lower court nominees has transformed the role interest groups play in the judicial confirmation process. In short, when leading interest groups believe they have uncovered a problematic nomination—problematic in the sense that the nominee may vote against the groups’ policy positions in future federal court litigation—they share this information, first with sympathetic senators on the Judiciary Committee, and later, with sympathetic senators throughout the chamber.”
Nancy Scherer et al., Sounding the Fire Alarm: The Role of Interest Groups in the Lower Federal Court Confirmation Process, 70 J. Pol. 1026, 1028 (2008).
Different committee chairs have differed on whether interest groups should testify at judicial confirmation hearings. When Senator Ted Kennedy (D-MA) chaired the Senate Judiciary Committee from 1978–1981, interest groups participated in a large percentage of judicial confirmation hearings. However, when Strom Thurmond (R-SC) took over the chairmanship from 1981–1987, interest group participation dropped dramatically. Under Joe Biden's (D-DE) stewardship from 1987–1995, interest group participation in confirmation hearings again increased, but it dropped when Senator Orin Hatch (R-UT) gained the chairmanship of the committee from 1995–2001.
Thus, it appears that Democratic chairs were more open to interest group participation in the confirmation hearings than were their Republican counterparts. Steigerwalt's interviews with Senate staffers confirmed that Democratic Senators, both members of the Judiciary Committee and non-members, received and welcomed interest group information about lower court nominees much more than their Republican colleagues.
Amy Steigerwalt, Battle Over the Bench: Senators, Interest Groups, and Lower Court Confirmations 106 (2010).
The most recent practice among both parties has been that the witness lists for confirmation hearings for lower court nominees include only the nominees themselves, while the committee accepts supporting documents from a variety of sources.
The decision to hold a hearing for lower court nominees usually involves the norm or tradition of Senatorial Courtesy, including the so-called Blue Slip process explained in more detail below. Since each U.S. District Court is located within a specific state, Senators would invoke the norm of Senatorial Courtesy and would refuse to vote for a nominee opposed by the home-state Senator if the Senator was a member of the same political party as the president. Many presidents went one step further and deferred to the Senators of their political party and from that particular state before nominating someone for a federal trial court opening.
John Anthony Maltese, The Selling of Supreme Court Nominees 120–21 (1995).
In other words, Senators often suggested names for judicial openings in their states, and many presidents would simply nominate the Senator's choice. This patronage approach seemed to meet the political needs of many Senators and of many presidents.
For the U.S. Circuit Courts of Appeals, by tradition, although not by statute, each seat belongs to a single state except for those on the U.S. Court of Appeals for the District of Columbia and the U.S. Court of Appeals for the Federal Circuit.
Id. at 50.
The Senate Judiciary Committee has often deferred to the home-state Senators of the nominees about U.S. Court of Appeals nominations as well.
Nancy Scherer, Scoring Points: Politicians, Activists, and the Lower Federal Court Appointment Process 141, 144 (2005).
In addition, the blue slip process has been used for the nominations of U.S. Attorneys, because there is one per each U.S. District Court district.
See e.g., Devlin Barrett, Trump Administration in Standoff with Manhattan U.S. Attorney Who Investigated the President's Associates, Wash. Post, June 19, 2020.
For example, when Senator Lyndsey Graham (R-SC) chaired the Senate Judiciary Committee from 2019 until early 2021 he said that he would follow the long-standing blue slip tradition for the nominations of U.S. Attorneys.
Jordain Carney, Schumer Says He Won’t Return Blue Slip if Trump Nominates Clayton as US Attorney, The Hill, June 22, 2020.
The Blue Slip process is an informal procedure governed by tradition. Typically, the chair of the Senate Judiciary Committee would send a blue slip of paper to each of the home-state Senators regardless of party for each lower court judicial nominee or U.S. Attorney nominee from their state.
Sarah A. Binder & Forrest Maltzman, Advice & Dissent: The Struggle to Shape the Federal Judiciary 15 (2009).
The custom began as early as 1917, although its modern manifestation dates from 1956. If the Senator supported the nomination, then they would return the blue slip to the committee chair. If they opposed the nominee, then they would either note their opposition on the blue slip or would never return the slip to the committee.
Barry J. McMillion, The Blue Slip Process for U.S. Circuit and District Court Nominations 2 (2017).
When faced with opposition to a nominee from a home-state Senator regardless of party, the chair of the Senate Judiciary Committee would usually refuse to schedule a hearing on that nominee, effectively killing that nomination. While the norm of Senatorial Courtesy seems to have applied only to Senators from the president's party, the institutionalization of the blue slip tradition gave a veto to home-state Senators from either party.
The issue of giving an absolute veto to home-state Senators over judicial nominees from their states regardless of party has given rise to different interpretations of the blue slip tradition by different Judiciary Committee chairs. As Amy Steigerwalt notes, “Much like other informal Senate customs, a negative blue slip is only as powerful as the Senate leadership, in this case the Judiciary Committee chair, allows it to be.”
Id. at 53.
One of the key determinants of how a Judiciary Committee chair will approach the blue slip process seems to be whether the Senate and the President are controlled by the same party or different political parties.
Carl Tobias, Senate Blue Slips and Senate Regular Order, 37 Yale L. & Pol’y Rev. Inter Alia 1, 4 (2018).
For many chairs of the Senate Judiciary Committee over the years, the refusal to return a blue slip or noting opposition to a nominee on a returned blue slip has prevented the chair from calling a hearing regarding that nomination. Without a hearing, the nomination effectively dies.
Id.
However, different Judiciary Committee chairs have interpreted the norm differently. For example, starting in 1956, Chairman James Eastland (D-MS) apparently treated a single negative blue slip or the failure to return one as an absolute veto on the nomination. However, Chairman Ted Kennedy (D-MA) changed that approach when he became chair of the committee in 1979.
For example, in 1980, Kennedy held hearings on a nominee from North Carolina over the objections of Senator Jessie Helms (R-NC). Chairman Strom Thurmond (R-SC) ignored Democratic objections to some of President Reagan's lower court nominees following the 1980 election, although he did allow Republican Senators to veto nominees for the U.S. Court of Appeals. Coming to power after the 1986 elections, Chairman Joe Biden (D-DE) often ignored the objections of his Democratic colleagues and held hearings on Reagan and Bush nominees.
With a Democrat in the White House, Chairman Orin Hatch (R-UT) reinstituted the blue slip veto tradition. However, Hatch (R-UT) refused to follow the blue slip custom starting in 2003 when Republicans gained unified control of the White House and the Senate. At times, he held hearings on nominees even when both home-state Democratic Senators opposed them.
These controversial nominations were often filibustered when they reached the Senate floor. In 2005, Chairman Arlen Specter (R-PA) returned to the single Senator veto practice on blue slips.
When Democrat Chairman Patrick Leahy (D-VT) took control of the committee in 2001, and then again in 2007, he instituted a rule that one negative blue slip would slow down a nomination and two negative blue slips would kill it.
However, at times he allowed even a single blue slip to prevent the committee from acting on the nomination. For example, Leahy held to the traditional understanding of the blue slip process even when it prevented a favored nominee of Majority Leader Harry Reid (D-NV) from gaining confirmation in 2012 because Senator Dean Heller (R-NV) refused to return the blue slip for the nominee.
Elliot Slotnick et al., Writing the Book of Judges, 4 J. L. & C’ts 206 (2016).
A senior Democratic staffer for Senator Leahy confirmed the Senator's belief “that someone should not be confirmed … if there is strong opposition by the home state's senator.”
Id.
Despite the fact that the Majority Leader was very unhappy with Senator Leahy, he maintained his position that a single negative blue slip could kill a nomination. A lobbyist analyzed the tense situation between the Majority Leader and the Judiciary Chairman in this way, “Leahy has been such an adamant defender of [the blue slip tradition] and refuses to waiver.”
Id.
As a Democratic staffer further explained the Chairman's position on the issue, “The story of the blue slip is really about consultation. … [Leahy] wants to make sure that this president, and future presidents, whether it's his party or not, is actually working with senators and negotiating with them.”
Id. at 207.
Chairman Chuck Grassley (R-IA) followed the traditional blue slip practice he inherited from Chairman Leahy during the Obama administration.
However, after President Trump's election, and under considerable pressure from Senate Majority Leader Mitch McConnell (R-KY) and other prominent conservatives, Grassley announced a new blue slip policy that, for the first time, would treat U.S. Court of Appeals nominees differently than those nominated for the U.S. District Courts. Grassley said he would likely honor a single negative blue slip for a district court nominee, but not for a circuit court nominee because the circuit courts cover multiple states and are more important nationally. Grassley held hearings on a variety of Trump appellate nominees despite the fact that one home-state Senator objected.
Chairman Grassley's change of heart provoked a strong reaction from Senator Leahy (D-VT). Believing that the blue slip tradition was central to the working of the Senate, Leahy stated:
Today marks yet another degradation of the ‘blue slip’ in the judicial confirmation process. It also marks the further erosion of fairness and comity in the Judiciary Committee. For much of this body's history, blue slips have given meaning to the constitutional requirement of ‘advice and consent’. They have protected the prerogatives of home-state senators. And they have ensured fairness in the Senate. In many ways, traditions like the blue slip have been central to what makes the Senate the Senate.
Patrick Leahy, Leahy Floor Statement on the Judiciary Committee Poised to Advance Ryan Bounds Without Blue Slips, States News Service, June 7, 2018.
When Chairman Grassley's term as chair of the Judiciary Committee ended in early 2019, the new Chairman Lindsey Graham (R-SC) went a step further than Chairman Grassley and abandoned altogether the blue slip custom for the U.S. Courts of Appeals nominations, stating, “[t]he blue slip process for circuit judges are [sic] not gonna [sic] be allowed to become a veto.”
Jordain Carney, Senate Reignites Blue Slip War over Trump Court Picks, The Hill (Feb. 24, 2019), https://thehill.com/homenews/senate/431232-senate-reignites-blue-slip-war-over-trump-court-picks.
In February of 2019, the Senate confirmed a Ninth Circuit nominee even though both home-state Senators refused to return their blue slips. It was the first time in history that the Senate had confirmed a federal judge over the opposition of both home-state Senators.
The blue slip process, of course, has never applied to nominees for the U.S. Supreme Court.
When Senator Dick Durbin (D-IL) became chair of the Senate Judiciary Committee in February of 2021, he announced that he would maintain the same blue slip policy as former chair Senator Grassley, meaning that he would honor the blue slip tradition for U.S. District Court nominees but abandon it for nominees to the U.S. Circuit Courts of Appeals.
Marianne Levine, Senate Dems Take a Page from GOP in Judicial Nominee Battles, Politico, Feb 17, 2021.
Durbin did say, however, that he would revisit the blue slip policy for District Court nominees if the Republicans in the evenly divided Senate caused a great deal of backlog in the consideration of these trial court appointees.
Carl Hulse, Durbin, New Judiciary Chair, Warns Republicans on Blocking Judges, N.Y. Times, March 1, 2021.
President Biden and the Senate Democrats have seemed to have avoided this problem because as of September of 2021, Biden had nominated very few individuals to fill judicial seats in states with Republican Senators, concentrating instead of getting as many nominees as possible confirmed in states with Democratic Senators. This follows the pattern of President Trump, whose early judicial nominees were almost all from states with two GOP Senators.
Russell Wheeler, Biden Is Appointing Judges Faster than Trump, and Most Everyone Else, For Now, Brookings, Sept. 2, 2021, https://www.brookings.edu/blog/fixgov/2021/09/02/biden-is-appointing-judges-faster-than-trump-and-most-everyone-else-for-now/.
The Senate Judiciary Committee, and the full Senate, was confirming Biden nominees at a pace not seen since the Nixon Administration, and certainly far faster than in either the Obama or Trump Administrations.
Nate Raymond, Biden Judicial Picks Win Senate Backing at Pace Not Seen Since Nixon, Reuters, Sept. 13, 2021.
Traditionally, the Senate would easily confirm the vast majority of the President's nominees for federal judgeships at all levels. In fact, before the 1980s, the Senate confirmed about ninety percent of presidential judicial nominees. High confirmation rates were especially true for lower court nominations, but Supreme Court nominees have historically received more intense scrutiny from the Senate.
The notable exceptions to presidential success in judicial nominations were, for example, when a coalition of Republicans and conservative Democrats successfully filibustered the nomination of Abe Fortas to be Chief Justice in 1968
See, e.g., Laura Kalman, The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court (2017); Joshua E. Kastenberg, The Campaign to Impeach Justice William O. Douglas (2019).
and when the Senate rejected President Nixon's nominations to the Supreme Court of Clement Haynsworth and G. Harold Carswell in 1969 and 1970, respectively.
Michael Comiskey, Seeking Justices: The Judging of Supreme Court Nominees 66–68 (2004).
Many commentators point to the rejection of President Reagan's nomination of Judge Robert Bork to the U.S. Supreme Court in 1987 and the role of interest groups in that fight as the start of the modern era of highly contested judicial nominations in the U.S. Senate.
Maltese, supranote 80, at 7–8; Binder & Maltzman, supranote 87, at 7–8.
Evidence of this new era is demonstrated by the fact that the Senate filibustered or otherwise delayed a variety of Clinton, George W. Bush, and eventually Obama lower court judicial nominations.
Binder & Maltzman, id. at 399–400.
Thus, as the Senate has grown more ideologically polarized, the confirmation process has also become more contentious and more partisan in nature.
Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress 61 (5th ed., 2017).
Bell agrees, arguing that, “the Senate's confirmation process has become little more than an extension of its legislative work.”
In the full Senate, the motion to consider a presidential nomination is not debatable, but the motion to approve the nomination is. Therefore, for an extended period in the history of the Senate, all presidential nominations, including judicial nominations, were subject to the filibuster.
This changed in 2013 when the Democratically controlled Senate invoked the so-called “nuclear option” and eliminated the filibuster for many executive branch nominees and for lower federal court nominees.
Roger H. Davidson et al, in Congress and Its Members 372 (16th ed., 2018).
In 2017, the Republican controlled Senate then eliminated the filibuster for U.S. Supreme Court nominees in order to get then Judge Neil Gorsuch confirmed to the high court.
Id. at 368–69.
Tensions in the Court-Congress Relationship
In addition to the confirmation process, there are certainly other ways that the federal courts interact with Congress and its Senate Judiciary Committee. At times, the relationship between Congress and the federal courts can be quite cooperative, but at other times it can be quite contentious. When the Congress is angry with the courts, it has a variety of tools available to it, including various types of court-curbing legislation. In my early work, I found that lawyer-legislators in the House were more protective of the courts than were than non-lawyer colleagues.
A Judiciary Committee staffer explained, “Just like one can disagree with different schools of thought among legal scholars or other academics, Judiciary members disagree with the courts without attacking the courts as an institution. When Judiciary members disagree with a court's decision, they don’t call for the impeachment of the judge; they file amicus briefs for the appeal.”
Things had changed quite a bit when I conduced my next round of interviews in 2006–2007. In fact, the lawyer-legislators on the House Judiciary Committee seemed to be leading the charge against the federal judiciary. As an employee of the judicial branch told me in 2006, “The days when we could count on lawyers in the House to protect judicial independence are long over. Today ideology and party matter much more than whether a member has a law degree.”
Id. at 139.
The early 2000s seemed to be the low point in the inter-institutional relationship between Congress and the federal courts, in large part because conservative lawmakers (and especially the conservative lawyer-legislators on the House Judiciary Committee) went on the attack against what they perceived to be liberal activist federal judges. Writing about this time period, Baker described the inter-institutional relationship among the judicial and legislative branches as, “mutual wariness, suspicion, jealousy, and even a bit of spite.”
In his research, Clark found that the period of 2001–2008 was one of the highest in modern history for the introduction of court-curbing legislation in Congress.
During my 2006 interviews, many of the interviewees described the then relationship between the two branches as “venomous”, “hostile”, “tense”, “deteriorating”, “contentious”, “animosity”, “strained”, and “adversarial”.
One liberal U.S. Representative who served on the House Judiciary Committee told me in 2006 that, “The relationship between the Congress and the federal courts is at an all-time low.”
Id.
The tension between the courts and Congress received quite a bit of attention from the media in that period. For example, in 2005 Newsweek ran a story entitled, “The War on Judges”, which concluded that, “concern over the rising tide of anti-judge rhetoric has rocked even the Supreme Court. Though judges have been dragged into the culture wars before, lately the animosity—and a range of new efforts to curb judicial power—have reached fever pitch.”
Debra Rosenburg, The War on Judges, Newsweek Apr. 25, 2005.
Even Justice Sandra Day O’Connor highlighted these concerns, stating in 2004 that the relationship between Congress and the federal courts was “more tense than at any time in my lifetime.”
Linda Greenhouse, Rehnquist Resumes His Call for Judicial Independence, N.Y Times (Jan. 1, 2005, at A10).
Justice Ginsburg agreed, stating that the judiciary was “under assault in a way that I haven’t seen before.”
Tony Mauro, Justices Fight Back, USA Today (Jun. 20, 2006, at 22).
As Chief Justice Rehnquist wrote in his 2004 annual report, “Criticism of judges has dramatically increased in recent years, exacerbating in some respects the strained relationship between the Congress and the federal judiciary.”
William H. Rehnquist, Year-End Report on the Federal Judiciary, 4 (Jan., 2005).
Summarizing the alarm that many felt about the rising level of attacks on the judiciary during this period, Geyh concluded that, “Some have likened the relationship between courts and Congress to a conversation or dialogue, but such measured and civil exchanges do not capture the rough and tumble of the interaction in its ordinary course the way a schoolyard fracas does.”
Charles Geyh, The Choreography of Courts-Congress Conflicts, in The Politics of Judicial Independence 23 (Bruce Peabody, ed., 2011).
When Congress is angry with the federal courts, it has a wide array of weapons in its arsenal to use against the judiciary.
Court-Curbing Efforts
Some of the routine interactions between Congress and the courts occur outside of the Judiciary Committees because the legislative branch must approve annual spending for the judiciary. In the early 2000s, some conservative politicians demanded that Congress use its budgetary powers against what they perceived to be liberal activist federal judges. For example, in 2005 then Majority Leader of the House Tom DeLay (R-TX) bellowed, “We set up the courts. We can unset the courts. We have the power of the purse!”
Quoted in Rick Klein, DeLay Apologized for Blaming Federal Judges in Schiavo Case; but House Leader Call for Probe of ‘Judicial Activism’, Boston Globe, Apr. 14, 2005, at A.9.
At about the same time, Representative Steve King (R-IA), then a member of the House Judiciary Committee, expressed his frustration with the federal courts by proclaiming, “When their budget starts to dry up, we’ll get their attention.”
Quoted in Ruth Marcus, Booting the Bench: There's New Ferocity in Talk of Firing Activist Judges, Wash. Post, Apr. 11, 2005, at A.19. In 2019, the Republican party leaders stripped King of all of his committee assignments in the chamber, including his longstanding seat on the House Judiciary Committee, because of statements he made in support of White Nationalism. See also Mike DeBonis, House Republican Leaders Move to Strip Rep. Steve King of His Committee Assignments Over Comments About White Nationalism, Wash. Post, Jan. 14, 2019.
Although individual legislators have often threatened to use congressional budget powers against the federal courts in order to retaliate for judicial decisions that they do not like, Congress as a whole has rarely done so.
At times, the Congress has considered more severe court-curbing proposals, including court-stripping. Court stripping means that Congress passes a statute prohibiting the federal courts from hearing a specific case or a specific class of cases. Congress creates federal court jurisdiction, and many argue that the legislative branch can also take this jurisdiction away. In the early 2000s, conservative demands gained momentum to strip the federal courts of jurisdiction over a variety of types of cases. In September 2004 the Senate Republican Policy Committee distributed a report entitled Restoring Popular Control of the Constitution: The Case for Jurisdiction-Stripping Legislation. The report stated that, “the American people must have a remedy when they believe that federal courts have overreached and interpreted the Constitution in ways that are fundamentally at odds with the people's common constitutional understandings and expectations.”
Jon Kyle, Restoring Proper Control of the Constitution: The Case for Jurisdiction-Stripping Legislation, U.S. Senate Republican Policy Comm. Rep., Sept. 28, 2004.
In addition to stripping the courts of jurisdiction over a variety of cases, conservatives discovered some other novel ways to attack the courts. One example came in the form of a bill that would have established an Inspector General (IG) for the federal judiciary in order to oversee the courts, investigate ethical problems among federal judges, and conduct investigations into the issue of judges’ overreaching their constitutional powers. In 2005, the then chair of the House Judiciary Committee, Congressman Jim Sensenbrenner (R-WI), and the then chair of the Senate Judiciary Committee, Senator Chuck Grassley (R-IA), proposed such a bill. This legislation was approved by the House Judiciary Committee in September 2006 on a party-line vote, although it then died in the full House at the end of the 109th Congress.
The timing of this legislation was important. At the time, the House Judiciary Committee had passed a variety of court-stripping bills, and there were threats of impeachment of federal judges coming from many committee members.
Creating an Inspector General for the judiciary would be a very aggressive form of congressional oversight over the independent third branch. Since 1978, Congress has established Inspectors General in almost all federal agencies to help conduct oversight of the executive branch. The Inspectors General conduct audits and investigations of agency programs and operations, and report directly to Congress on their findings. An Inspector General for the federal judiciary, however, has never existed. Although the authors of this Inspector General legislation said that it was not intended to alter the decisions of federal judges, others were less convinced. The proposal struck federal judges as an attack on judicial independence. They saw the main goal of an Inspector General as providing evidence to be used for the impeachment of federal judges whose decisions various politicians did not like.
Id.
As one lobbyist told me in a 2007 interview, “Having the IG report information to Congress is a clear form of intimidation of federal judges over the direction of their judicial decisions and a clear impeachment threat against them.”
Id., at 173.
Along these same lines, Justice Ruth Bader Ginsburg declared that, “judges have good cause for concern” about the legislation, implying that the sponsors’ intent was to force federal judges to issue decisions with which they agreed.
Ruth Bader Ginsburg, Judicial Independence: The Situation of the U.S. Federal Judiciary, 85 Neb. L. Rev. 1 (2006).
Adding some force to this argument, House Judiciary Committee Chairman Sensenbrenner said in a speech at Stanford University, “The inspector general would be able to manage how we punish and who does the punishing for judges’ misconduct.”
Albert Yap, Congressman Speaks on Legislature, Judiciary, Stan. Rev., May 20, 2005 (emphasis added).
The inspector-general legislation approved by the House Judiciary Committee was never considered by The Senate Judiciary Committee.
Another extremely aggressive weapon that Congress could use against federal judges is the threat of impeachment. The House must first approve articles of impeachment by a majority vote, and then the Senate holds a trial to determine whether the federal official should be removed from office. It takes a two-thirds vote of the Senate to remove a federal judge or other federal official. This is a drastic measure, and since the failed attempt to impeach Justice Chase in 1804 Congress has never removed a federal judge solely because of their decisions.
See William H. Rehnquist, Grand Inquests (1992).
However, threats of impeachment have long been used by legislators against federal judges. For example, angry members of Congress introduced two different proposals for the impeachment of Justice William O. Douglas, the first in 1953, objecting to his willingness to stay the executions of Ethel and Julius Rosenberg, and the second in 1970 over a variety of concerns.
Richard L. Pacelle, The Role of the Supreme Court in American Politics: The Least Dangerous Branch?, 96 (2002).
The standards for impeachment of federal judges are unclear. As part of the efforts to impeach Justice Douglas, then House Minority Leader Gerald Ford (R-MI) stated that, “an impeachable offense is whatever a majority of the House of Representatives considers it to be at any given moment in history.”
Although the relationship between the Congress and the federal courts is much better today, conservative opposition to the judiciary nevertheless continues. Individual members of the Senate Judiciary Committee have even proposed various court-curbing measures. When running for president in the 2016 presidential primaries against Donald Trump, Senator Ted Cruz (R-TX), a member of the Senate Judiciary Committee, supported a variety of proposals to curb the power of the federal bench, including ending life terms by imposing retention elections for U.S. Supreme Court Justices. Senator Cruz said then, “To see the court behaving as it is today, as a super-legislature, simply enacting the policy preferences of the elite judges who are serving upon it, is a profound betrayal of their judicial oaths of office and of the constitutional design that has protected our liberty for over two centuries.”
Katie Zezima, Cruz Once Clerked for a Chief Justice, but He's No Longer a Friend of the Court, Wash. Post (Jul. 6, 2015).
Given his strong criticism of the Supreme Court's rulings on same-sex marriage and the Affordable Care Act, critics of Senator Cruz have stated that he is advocating “massive resistance” to Supreme Court decisions, much like we saw from conservatives after the Brown v. Board of Education (1954) ruling.
Id.
Senator Cruz countered that the current Supreme Court is out of control and needs a massive reorganization and a narrower mission. As the Senator stated, “No one in their right mind would establish a system of government where every major contested public policy issue is decided by the decree of five unelected lawyers. That's not a rational way to govern our society.”
Id.
President Donald Trump, of course, also routinely attacked federal judges in highly personal ways when they issued decisions with which he disagreed.
See, e.g., Robert Barnes, Rebuking Trump's Criticism of “Obama Judge,” Chief Justice Roberts Defends Judiciary as ‘Independent’, Wash. Post (Nov. 21, 2018).
Nevertheless, the Senate Judiciary Committee has not been hospitable to legislation that would put these attacks on the judiciary into action.
Protecting the Courts
The Senate in general, and the Senate Judiciary Committee in particular, have over the years killed many court-curbing bills, including most of the anti-court legislation passed by the House Judiciary Committee early in this century. It is worth noting that since Reconstruction, 78% of court-curbing legislation introduced in Congress has originated in the House, while only 22% has started in the U.S. Senate.
When I again conducted my interviews in 2017 and 2018, the relationship between the Judiciary Committees and the courts was far less tense. There were certainly moments of potential conflict, but in general the overt institutional attacks against the courts had clearly subsided. It is worth repeating that the Senate Judiciary Committee has long refused to consider most court-curbing proposals. As one lobbyist said in 2017, “The Senate is a shield against the hyperactive House.”
Id. at 216–17.
Agreeing, one Republican former Senate staffer told me in 2017, “The Senate Judiciary Committee stopped everything coming from the House.”
The Senate Judiciary Committee has clearly served as the legislative graveyard for anti-court legislation approved by the House Judiciary Committee.
It is certainly true that the individual who is chairing the Senate Judiciary Committee can have an enormous effect on the relationship between the committee and the federal courts. As one lobbyist told me in 2018, “The key factor of great importance in the relationship between Congress and the courts is the committee leadership and their individual attitudes towards the judiciary.”
Id. at 248.
Even when the chair of the Senate Judiciary Committee was not generally a supporter of the needs of federal judges, they had great difficulty getting the Committee of Lawyers to support anti-court proposals. Despite the views of whoever is chairing the Judiciary Committee, the committee after all does exist in the broader context of the Senate as a whole, but the committee also reflects the incrementalist tendencies of the lawyers who serve on it.
Looking more closely at a recent chair of the Senate Judiciary Committee can help us understand more about the relationship between the Committee and the third branch. Although Senator Chuck Grassley (R-IA) was certainly not a friend of the courts when he chaired the Senate Judiciary Committee from 2015–2019, he could not convince most of the members of the committee to approve his court-curbing agenda, in part because he could not overcome the Senate's general unwillingness to enact extreme and non-incrementalistic measures. Senator Grassley also did not want to increase tensions with the other members of the committee on legislative matters because he was compelled by the party leadership to take certain highly controversial steps on judicial confirmations. As one lobbyist explained to me in 2017, “Grassley wants comity and collegiality, and thus he won’t push anti-court legislation in the committee.”
The Senate Judiciary Committee is thus clearly reflective of the broader culture of its parent chamber, which means it is hard for the Senate chair to control the other members of the committee in an institution that clearly values the needs and prerogatives of individual Senators.
Still, there was a great deal of criticism of Grassley's tenure as chair of the Senate Judiciary Committee. Some of this criticism centered around the fact that Grassley was a non-lawyer on a committee dominated by lawyer-legislators, but his negative approach to the courts was certainly another factor. An employee of a think tank was quite critical of Senator Grassley's approach to the judiciary in a 2018 interview with me, noting that, “Grassley only has a vague conception of what courts do. Everything with Grassley is personal, and he has a great deal of antagonism toward federal judges.” This person continued, “As a non-lawyer, Grassley doesn’t understand how the court system actually functions.”
A lobbyist agreed, stating, “As a non-lawyer, Grassley is unaware of the process used in the Judicial Conference to make policy.”
Id. at 242–43.
A Democratic Senate staffer was more subtle in his criticism of the chairman, noting that, “Grassley is a non-lawyer, and certain issues matter more to him and matter differently than to the lawyer members on the committee.”
Id.
When Senator Lyndsey Graham (R-SC) took over the chairmanship of the Senate Judiciary Committee in 2019, lawyer-legislators again controlled the leadership of the committee.
The Senate Judiciary Committee, the Committee of Lawyers, is a key player in determining the relationship between Congress and the federal courts. This Article has used a Historical Institutionalist analysis to help us understand the interactions between Congress and the federal judiciary, focusing on the role of the Judiciary Committee in this process. Specific congressional committees are worthy of study, because each committee has a unique political culture and a unique decision-making style.
Richard F. Fenno, Jr., Congressmen in Committees 280 (1973).
The chair of the committee can help shape the committee's approach to the courts, but the chair is constrained by the committee's political culture as well as by the political realities of the Senate as a whole. Thus, the Senate Judiciary Committee is a key component of the broader committee system in the Senate. This system is clearly important. As Price, who is a political scientist serving in Congress, has noted, “The Committee system … accommodates the aspirations of disparate members but also represents a corrective of sorts to congressional individualism—a means of bringing expertise and attention to bear on the legislature's tasks in a more concerted fashion than the free enterprise of individual members could accomplish. The committee system channels members’ desires for leverage and status into activity that serves the institution's needs and builds its policymaking capacities.”
David E. Price, The Congressional Experience 291 (4th ed., 2021).
The Judiciary Committee is a key player in shaping the interactions between Congress as a whole and the federal judiciary. The Senate Judiciary Committee is reflective of the broader culture of its parent chamber, but it also serves to protect the courts from potential institutional attacks.
