(AP Photo/Charles Dharapak)
Earlier this month, Russell Wheeler of the Brookings Institution published an interesting comparison of judicial confirmations during the first two years of the administrations of Presidents Barack Obama, George W. Bush and Bill Clinton. Interestingly, all three faced Democratic majorities in the Senate, although under President Bush the margin was a very slim 51-49.
Wheeler started with the general observation that under the five presidents preceding Obama, the percentage of circuit court nominees confirmed by the Senate has crept downward (Carter 92 percent, Reagan 88, Bush I 79, Clinton 73, Bush II 71) while district court nominees have remained fairly steady and high (Carter 91 percent, Reagan 94, Bush I 79, Clinton 87, Bush II 92).
When comparing Clinton, Bush II and Obama’s first two years, some interesting differences emerge. Clinton inherited 17 circuit court vacancies, nominated 22 candidates, had 19 confirmations, resulting in 16 vacancies when the Senate adjourned. Under Bush II, those numbers are 27 vacancies, 31 nominees, 16 confirmations and 25 remaining vacancies. For Obama, it’s 13 vacancies, 25 nominations, 16 confirmations and 16 remaining vacancies. Clinton and Bush II reduced their vacancies slightly, while Obama saw them increase.
For district court vacancies, there’s an even bigger discrepancy. Again, during the first two years, Clinton inherited 90 vacancies, nominated 118, confirmed 107, with 52 remaining vacancies. For Bush II: 54 vacancies, 98 nominations, 83 confirmations, and 35 remaining vacancies. Under Obama: 41 vacancies, 78 nominations, 44 confirmations, and 76 remaining vacancies. Clinton reduced the vacancies he inherited by 42 percent, Bush II by 35 percent. Obama saw the vacancies increase by 85 percent.
That Obama got even the district confirmations he did, moreover, was due to the lame duck session. Confirmations don’t stop on July 1 of election years, even if they become more difficult. 47 of Clinton’s 107 district confirmations came in August through October 1994.
The 2002 107th lame duck Democratic Senate, with a switch in party control looming, confirmed 17 Bush district nominees. The 2010 111th lame duck Senate confirmed 14 Obama district nominees. But different things were going on. The lame duck 107th was mainly cleaning out relatively recent Bush nominations. The 17 Bush appointees it confirmed had waited on average 149 days for Senate action; only three had been nominated before June 2002. By contrast, Obama’s 14 lame duck district confirmations represented a deal to clean up mostly long-standing, non-controversial nominees. They waited on average 257 days for confirmation, and only one had been nominated after June 2010.