President Bill Clinton appointed unprecedented numbers and percentages of highly qualified female and minority lawyers to the federal bench during his initial half-term in office, substantially surpassing the records of Presidents Ronald Reagan, George Bush and Jimmy Carter. The Clinton administration invoked an efficacious, uncontroversial selection process and filled a significant percentage of the 113 judicial openings that existed when it assumed office.
Some federal court observers questioned whether the Chief Executive could maintain this commendable record during his presidency's third year. More specifically, they wondered if Republican Party control of the United States Senate, which must approve nominees, and the impending 1996 presidential election might slow the confirmation process; reduce the number of female and minority attorneys named; and increase the number of appointees who are less controversial and more moderate politically.
Now that the first session of the 104th Congress has adjourned, it is important to analyze the Clinton administration's success in naming judges. This Essay undertakes that effort by concentrating on the appointment of women and minorities to the federal courts. The initial section of the piece briefly explores modem judicial selection, focusing on the policies and procedures for choosing judges, and the lawyers named, during the Carter, Reagan and Bush presidencies.
The Essay then evaluates the judicial selection goals enunciated, the practices employed, and the attorneys appointed, in the Clinton administration's third year. I ascertain that President Clinton named substantial numbers and percentages of extremely capable women and minorities, although the Senate did not consider two of the Administration's nominees who had Judiciary Committee hearings, and fifty judicial vacancies remained when the Senate recessed. The paper correspondingly finds that the effective selection process applied during President Clinton's first half-term continued to operate smoothly, as witnessed by the numerous, highly competent lawyers whom the Administration nominated and appointed.
I also determine that President Clinton filled many judicial openings and that he bears little responsibility for the seats that are empty. Moreover, it is important to have on the bench the complete complement of judges authorized. For example, only that full contingent can satisfactorily expedite the disposition of cases, decrease existing civil backlogs in numerous districts and ameliorate the pressures which the 1994 crime legislation will impose on the justice system. Ascertaining that the Administration has instituted procedures which could foster the appointment of additional, very able women and minorities and the elimination of all vacancies, I assess why President Clinton should attempt to achieve this objective and how his Administration might realize that purpose.
Carl Tobias, Filling the Federal Courts in an Election Year, 49 SMU L. Rev. 309 (1996)