It's been nearly two years since J. Michael Luttig resigned from the bench of the U.S. Court of Appeals for the Fourth Circuit. But in all that time, the Senate has yet to confirm a successor.
Such a lag is increasingly common these days in federal judicial nominations, but as the Bush administration inches closer to an end, the stalling has erupted into an all-out partisan battle over whether the White House will be able to secure lifetime appointments for all of the 46 openings currently in the federal judiciary.
Are the Democrats simply trying to stall Bush's nominees until time runs out, as some Republicans allege? Or is the White House failing to nominate individuals quickly and then choosing controversial nominees who cannot win the support of their home state senators, as some Democrats contend?
The answer is hardly simple, but for all the finger-pointing, one thing is clear: Even if the Senate pushes through nominees for all of the vacancies—a feat unlikely in a presidential election year—the Bush administration's total judicial confirmations will be fewer than those of either Presidents Bill Clinton or Ronald Reagan.
The problem is simple math.
The Bush administration has pushed through 299 judges, 58 on appeals courts. But with 46 vacancies—only 31 for which the president had announced a nominee—Bush won't be able to reach the Clinton administration's 370 judges or Reagan's 373. In other words, there are not enough vacancies in the court system to match either president's record.
The question is whether this will diminish Bush's legal legacy in the courts.
The answer, most observers say, cannot be reduced to mere numbers. First, the bulk of Clinton appointees were district court judges, whose major task is overseeing trials and applying already determined law. The difference between appellate judges—58 so far by Bush compared with 65 by Clinton—is far fewer. And with 12 vacancies on the appeals courts, the White House has the potential to confirm at least as many as Clinton did.
More important, however, is the Supreme Court, which ultimately sets the direction of federal jurisprudence. While Bush has appointed the same number to the court as Clinton, Bush's nominees—Chief Justice John Roberts and Justice Samuel Alito—have created reliably conservative votes, ultimately shifting the balance of the high court.
"What's really key is the fact that the balance of the Supreme Court has changed pretty dramatically," says Wendy Martinek, a political science professor at SUNY-Binghamton, who has researched judicial nominations. "If you look at the Supreme Court, there's a much bigger effect and a much bigger legacy."
And their appointment could be all the more influential with a majority of active appellate judges—60 percent—appointed by Republican presidents.
Yet whatever impact Bush's justices will have on the law, the stalling of nominations during both the Clinton and Bush administrations is unlikely to end the rancor that both parties have indulged in.
"If federal judgeships become epic battles year in and year out, it will take a toll on who becomes a judge and what sort of job they will do on the bench," says Bert Brandenburg, executive director of the Justice at Stake Campaign. "The more hyperpolitical the process is, the more good people will bow out."
The case of the Fourth Circuit is a key example. Considered a hub of conservatism, the court now has five openings, enough to shift the political balance of the 15-member court. When a Virginia seat came open in 2003, the president turned to then Defense Department general counsel William Haynes II to fill the spot traditionally reserved for someone from Virginia. But Haynes's role in drafting some of the most controversial memos on torture and interrogation techniques stalled his nomination until Bush decided to renominate him last year.
To help find a more confirmable choice, Virginia's two senators, Republican John Warner and Democrat Jim Webb, put together a list of five individuals they could both support. But in September, Bush chose someone else: E. Duncan Getchell, a private-practice attorney in Virginia. Without support from either senator, Getchell's nomination languished until January, when the White House withdrew his nomination. No one has been named since then.
But the effort to fill the opening for the other Virginia seat—the one once held by Luttig—may fare better. After nearly two years of silence, the White House announced a replacement in March: G. Steve Agee, a justice on the state Supreme Court, who has the support of both Warner and Webb. His Senate hearing is May 1.