Congress and the Federal Judiciary: Approval and Impeachment

Zach Haselhorst

POL 411:  Congress Structure

November 28, 2011

Video Paper

Congress and the Federal Judiciary:  Approval and Impeachment

            The Congress plays a vital role in staffing the federal judiciary system, from district court judges up to the Supreme Court of the United States.  Article II, Section 2 of the Constitution states that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.”[1]  This gives the Senate the explicit task of investigating and approving nominees to the Supreme Court, courts of appeals, and district courts.  In addition to investigating and approving the President’s nominations for federal judges, the Congress plays the sole role in the impeachment process for the same positions.  The House may impeach federal judges, and then the Senate must follow with a trial and vote on conviction.  With the dramatic impact the federal judiciary system has upon the country, a more thorough understanding of the Congress’s role in staffing the system would behoove any citizen.

            The nomination and approval process for federal judges involves cooperation between the president and the Senate.  The idea for this cooperation can be traced to the thought put into the Federalist papers, and specifically Alexander Hamilton’s “Federalist No. 76.”  Hamilton wrote:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.[2]

The president ultimately issues his nominations on his own, but he is normally aided in his search by the Senate Judiciary Committee, especially for the many district-court judges.  For these lower-court nominations, senators of the president’s party play an active role by suggesting acceptable candidates to the administration.  The president lacks the time and resources required to make educated decisions on each and every district court seat.  To help the process, the Judiciary Committee’s staff studies candidates for nomination, receives reports from the American Bar Association and the FBI, and routinely recommends approval of the nominees to the full Senate, which usually confirms with little discussion.  With such a broad system of district courts to maintain, localism plays a large role in these nominations.  Members of Congress routinely will throw their weight behind judges from their states and districts by making public statements and committee hearings.  Nominations to the circuit courts of appeal have recently generated broader interest among Senators, especially if the judge could potentially be a Supreme Court nominee down the line.  These twelve circuit courts are obviously much more powerful than district courts, and thus the nominees to such positions are put through much more scrutiny and discussion.  The Senate Judiciary Committee often holds hearings where nominees to federal judgeships are invited to deliver a statement and then answer questions.  Video Clip 1 shows a 1994 hearing held by the Judiciary Committee and involving one nominee to a circuit court and several nominees to district courts.  The chairman of the hearing does a great job at clearly describing the process.  Several members of Congress turn out introduce their hometown judges to the committee.  Members’ statements are entered into the record regarding particular nominees they support.  Also, each nominee submits detailed questionnaires to aid Senators in their study of the judges and their qualifications, experiences, finances and philosophies.

(C-SPAN Video Library)

            For nominations and confirmations to the Supreme Court of the United States, nothing is routine about the process.  Nominees fill out lengthy questionnaires, the Judiciary Committee’s staffers do an extensive background investigation, the American Bar Association delivers a detailed evaluation, and then several days of hearings are held to completely exhaust the confirmation process.  In total, 26 presidential nominations have failed to be confirmed by the Senate; about 20 percent.  Many of these failures took place before the twentieth century, but a few have happened very recently.  President Reagan’s nomination of Robert Bork in 1987 failed because of an onslaught of pressure from civil rights groups, which attacked Bork’s opposition to affirmative action, his ruling on abortion, and his tendency for judicial activism.  The Senate voted 58 to 42 against Bork’s confirmation.  President H.W. Bush’s nomination of Clarence Thomas in 1991 did not fail, but it generated an unprecedented amount of controversy.  Thomas received less-then-flattering ratings from the American Bar Association, and had relatively little judicial experience.  What sparked more controversy was a complaint of sexual misconduct by Anita Hill, a law professor who had worked for Thomas.  The Senate Judiciary Committee held an unprecedented second hearing, where Hill repeated her charges and Thomas did his best to respond in front of a large national television audience.  Video 2 shows Thomas in this second hearing.

(C-SPAN Video Library)      

In the end, Thomas was confirmed by a vote of 52-48, and the Judiciary Committee faced tough criticism for the way in which the process was executed.  With the lifetime term of Supreme Court Justices, however, one can see the importance of a thorough investigation into each and every nomination for such a position.

            Partisanship plays a large role in confirmations.  When the president has his own party in the majority of the Senate, his nominations typically go through pretty smoothly, but when his party does not have the majority of the Senate, the confirmations could potentially be slowed down, perhaps to the point of failure.  Through the Reagan and H.W. Bush administrations, 460 appointments were made to the federal bench without much overall struggle, until Senator Biden and the Judiciary Committee began taking a more aggressive stance leading up to the 1992 election.  President Clinton was successful in getting rapid confirmations in his first two years of office, but Republicans took majority in 1994 and the speed of confirmation slowed markedly.  Many vacancies went unfilled for more than 18 months.  More than 90 percent of nominees to the lower courts are affiliated with the party of the president nominating them.  For Supreme Court nominations, close to 90 percent of the president’s nominees have been confirmed when the president’s party holds the majority, but only 59 percent have been confirmed when the Senate majority and the president differed in party affiliation.[3]

            As previously stated, both houses of Congress execute specific roles in the process of impeachment of federal judges.  Article III, Section 1 of the Constitution provides that “the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior…”[4]  The impeachment process is the system through which the “good behavior” is held in check.  Article II, Section 4 of the Constitution states:  “The President, Vice President, and all Civil Officers of the United States, shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and misdemeanors.”[5]  All impeachments take place in the House of Representatives.  Impeachment charges must originate somewhere in the House – it does not matter where.  An impeachment is simply the formal lodging of charges against an official, and a majority vote is required.  From there, the Senate then tries the official as House trial managers prosecute the case.  A two-third majority is needed for conviction.  In all, nineteen persons have been impeached by the House, including fourteen federal judges.  Seven of those federal judges have been convicted and removed from office by the Senate.[6]  One of those seven took place very recently, involving a district court judge from Louisiana.  In 2009, Thomas Porteous, a judge in the US District Court for the Eastern District of Louisiana, who had been appointed by President Clinton in 1994, was impeached by the House of Representatives for allegedly repeatedly committing perjury by signing false financial disclosure forms under oath.  On December 8^th, 2010, the Senate, after holding Porteous’s trial, voted for conviction and removal from office.  Video 3 shows Judge Porteous’s conviction by a vote in the Senate.  In the video, the president of the Senate reads through the details of the process, involving all four articles of impeachment brought against Judge Porteous, the final vote from the Senate, and the removal from office.  The Senate majority leader also follows up with a request to give two other senators the chance to speak on the subject, most likely to make statements about the importance of quality choices for judgeships.

 (C-SPAN Video Library)

The fifty-percent conviction rate in the Senate for federal judges is significant, seeing as no other type of office has ever been convicted.  This suggests the extreme determination by the Senate to keep the federal judiciary system in good standing, clean of scandal.

            As can be seen, the Congress plays the largest governmental role in the maintenance and staffing of the federal judiciary system.  From recommendations to the president regarding lower court nominations, to investigation and confirmation of the president’s appointments to all federal courts, to the impeachment and conviction of unsatisfactory federal judges, the Congress has a variety of tasks impacting the system.  After having researched into the details of this process, a citizen will be better able understand and more closely follow how members of Congress are running the court system of the country.

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[1] U.S. Const. art. II, § 2.

[2] Hamilton, Alexander.  (1788).  “Federalist No. 76.”  The Federalist Papers.

[3] Smith, Steven S., Roberts, Jason M., & Vander Wielen, Ryan J.  (2009).  The American Congress.  New York:  Cambridge.  Pages 328-330.

[4] U.S. Const. art. III, § 1.

[5] U.S. Const. art. II, § 4.

[6] Oleszek, Walter J.  (2011).  Congressional Procedures and the Policy Process.  Washington, D.C.:  CQ Press.  Pages 354-355.