How Nominees are Confirmed
The Constitution, in the Appointments Clause, requires the President:
Once a candidate has been nominated, he or she must be confirmed by the Senate, a process left by the Founders for the Senate to decide as they deem fitting. The current confirmation process has developed over time to include numerous traditions, precedents, professional courtesies, and formal rules adopted by the Senate.
The Power of Federal Courts
Judges who become part of the federal judiciary hold immense power over the lives of Americans, hearing cases that affect religious freedom for generations. The Supreme Court takes about 70-80 cases annually, while federal courts of appeals handle about 35,000 cases per year. So while Supreme Court justice selections are especially important, circuit court and district court judges hear 99% of all federal appeals cases.
President Trump, along with the Republican-controlled Senate, has a prime opportunity to nominate judges who will uphold the Constitution. As with the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court, First Liberty attorneys—religious liberty experts—have been analyzing the opinions of judicial candidates related to religious freedom.
How the U.S. Court System Works
DUAL COURT SYSTEM
Because the Founders wanted a union of sovereign states, the U.S. has a dual court system: the federal judiciary and the individual state judiciaries.
Each state has its own court system to resolve disputes pertaining state law. States seat judges either through election, appointment or a combination of both election and appointment (Missouri Plan).
The federal judiciary is regulated by the Constitution. Judges on these benches make decisions on issues pertaining to federal law and interstate issues. To be appointed, an individual must be nominated by the president and consented to by the Senate. Click the graphic above for greater detail on the behind the scenes process that leads to an appointment.
Take Action: Speed Up the Nomination Process
The fair and timely confirmation of Justice Neil Gorsuch to the Supreme Court stands in stark contrast to the gridlock and obstruction imposed on President Trump’s nominees to the lower courts. Today, there are more judicial vacancies than when President Trump first took office — over 100.
In the past, the Senate has temporarily revoked the 30-hour rule, making the confirmation process more efficient. Unfortunately, that policy has expired.
The 30-hour rule is a derivative of the more familiar filibuster process. In 2013, the Senate abolished the 60-vote threshold to cut off debate (to invoke cloture) on all nominations except those to the Supreme Court. However, Senate rules still currently allow up to 30 hours of debate per nomination.
With this rule and the number of vacancies, it could take several years just to debate nominees for the current judicial vacancies! Never mind additional vacancies that will arise and the other tasks the Senate must accomplish.
Urge your Senators to change this rule. Tell Senate Majority Leader Mitch McConnell (R-KY) to lead his caucus to implement the reforms to the 30-hour rule suggested by Senator James Lankford (R-OK). This will allow a short period for post-cloture debate, ideally two hours per nominee, but certainly not more than eight hours. With this reform, the Senate should be able to quickly confirm nominees to lifetime judgeships.