Advice, Consent, and Senate Inaction - New York University Law Review

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Michael Schattman is a former Texas state judge who was nominated by President Clinton to fill one of two vacant federal judgeships on the fourteen-seat Northern District of Texas.' Despite the growing backlog of cases in the district, the United States Senate has refused to hold hearings or a vote on Schattman's nomination 2 Senator Phil Gramm, one of the two Texas Republican Senators who oppose Schattman's confirmation, is concerned about Schattman's activities as a conscientious objector during the Vietnam War.3 Senator Gramm believes Schattman's participation in the antiwar movement renders him unable to rule fairly on cases involving employees of the many military contractors in the district.4 In response, Schattman cites his extensive experience on the state bench, where he adjudicated a number of cases involving the same population of military employees. 5 Schattman also has been criticized for his active participation in local Democratic politics. 6 As a state judge who holds an elected position, however, Schattman argues that some participation in politics is inevitable.7 Schattman simply wants his nomination to go before the Senate, so that he may defend himself in a confirmation hearing and have the Senate vote on his nomination.8 * The author would like to thank Professor Burt Neuborne for his immeasurable "advice and consent." This Note has benefited greatly from the superb editing of the staff of the New York University Law Review, especially Jennifer Lynch and John McGuire. Finally, much gratitude is owed to Clara and Seymour Cohen for their diligent media monitoring. 1 See Neil A. Lewis, Jilted Texas Judge Takes on His Foes in Partisan Congress, N.Y. Tmes, Nov. 16, 1997, at Al. 2 See id. 3 See id.

4 See id. 5 See id. 6 See id. 7 See id.

8 See id. As of August 1, 1998, Schattman's nomination still had not been voted on by the Senate. See Administrative Office of U.S. Courts, Vacancies in the Federal Judiciary (visited Aug. 1, 1998) . 1739 Imaged with the Permission of N.Y.U. Law Review


[Vol. 73:1739

If Michael Schattman's plight were an isolated incident, his picture would not be on the front page of the New York Times. Instead, his story is just one example of the recent failure of the President and the Senate to fill vacancies in the federal judiciary. That failure, many say, began in 1994.9 In light of the current stalemate in the appointment of federal judges, this Note will explore the possibility of a judicial remedy for the Senate's failure to act on presidential nominees for the federal judiciary. 10 Understandably, the possibility of a judicial remedy may appear unlikely. A federal judge willing to review and reform the Senate's handling of its judicial confirmation responsibilities would certainly open herself up to an enormous flood of criticism, both academic and political. However, the potential for abuse in the appointment process-which, as this Note will argue, has now come to bear-merits serious consideration of the constitutional limits of Senate discretion. This Note will seek to define those limits by proposing several principled constitutional theories that argue for judicial review of Senate inaction. Through an examination of the three procedural obstacles most likely to stand in the way of such judicial action, this Note also will test the ability of a federal court to enforce those boundaries. Part I of this Note explores the problem of judicial vacancies. By demonstrating the extent to which such vacancies are effecting the federal judiciary, Part I seeks to show why judicial intervention is warranted. This Part also discusses the remedies that would be available to a federal court should an action be brought. In Part II, this Note analyzes possible theories under which a claim may be brought. It first looks at the history and meaning of the Advice and Consent Clause of the Constit