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concerning what types of confirmations are being delayed rather than revealing actual causations
of delay. In order to address these questions, we must turn our attention to the Senate and the
actions of key senators. Senate leaders may affect confirmation outcomes through key
scheduling decisions. Furthermore, certain parliamentary procedures enable individual senators
to indefinitely delay particular judicial confirmations, and senators may use these tactics for a
variety of reasons. Therefore, a more thorough assessment of the different scheduling decisions
and parliamentary procedures by which senators may block a nominee is needed, as well as an
examination of why these particular mechanisms are being used and to whom these blocks are
being applied.
MECHANISMS OF DELAY
Little attention has been paid by scholars of the courts and the judicial confirmation
process to the precise mechanisms by which judicial confirmations may be delayed once they
reach the Senate. Overall, there are two sets of actions open to senators to delay the progress of
judicial confirmations: (1) scheduling decisions by Judiciary Committee and Senate leadership
and (2) parliamentary tactics used to block specific nominees.
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It should be noted that this chapter does not discuss delays that take place during the nomination phase, though
such delays are also common. In general, the White House must review a potential nominee (a process that usually
takes two to three months) and then submit the nomination to the Federal Bureau of Investigations and the Internal
Revenue Service for background checks; thus, after a possible candidate’s name is submitted, it can take up to six
months for the nomination to be formally made by the White House. Beyond just the usual time it takes for
nominations to be made formally, delays in the nominating process are also common. For example, many observers
observed in late 1991 that the Bush administration took almost eleven months on average to make nominations to
federal judicial vacancies, and other presidents have also delayed in making appointments (see, for example, Nichols
(1991)). Additionally, during the Bush (41) administration a fight broke out between the White House and home-
state senators (many of them fellow Republicans) over attempts by the administration to reassert control over lower
court nominations. Rather than asking senators for their preferred candidates, the Bush administration asked that
each Senator provide the names of at least three candidates and the administration would then pick from this list, a
request that led to a stand-off between Bush and both Republican and Democratic senators. This debate caused a
large number of seats to remain unfilled until the dispute was resolved and created a backup of nominees once the
nominations were officially made (see, Biskupic (1990)).
Convention