(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.
Moreover, Obama’s nominees have had to wait longer than those under Clinton and Bush II. For circuit court candidates, the average wait in days between nomination and confirmation during Obama’s first two years was 260, with 81 percent waiting more than 180 days. Under Bush II, it was 236 days, with 69 percent over 180 days. For Clinton, the average was 103 days, and none of them waited more than 180 days. The numbers for district court nominees also shows a disparity: Under Obama, an average wait of 175 days and 36 percent waited more than 180 days; under Bush II, 139 days and 12 percent; Clinton, 76 days, and 1 percent.
The lower, and slower, confirmation rate for Obama district nominees is not due to defeats on the Senate floor but—in what is by now a well-told tale—to the opposition’s use of Senate rules. Those rules permit even one Senator to object—or threaten to object—to the majority leader’s request for unanimous consent to proceed to a floor vote on a nomination. Proceeding to a floor vote without unanimous consent requires 60 votes to invoke cloture and then up to 30 hours of debate in a Senate with a lot of other pressing business. The threat of an objection has been enough, at least recently, to stall nominations.
Republican opposition to Obama district court nominees seems, except for a few instances, rooted in causes other than controversy over the nominees’ qualifications. Those nominees for whom the minority permitted a floor vote—even those who waited long periods for the vote—were for the most confirmed unanimously or with only a handful of negative votes. (An oft-cited example, including by the Chief Justice, is Kimberly Mueller, a U.S. magistrate judge nominated in March 2010 to the Eastern District of California, which in 2009 was first in the nation in weighted filings per judgeship. Ranked “unanimously well qualified” by the ABA’s Standing Committee on the Federal Judiciary, she received a hearing on April 16, was reported out of committee on May 6 and then waited until December 16, when the lame duck Senate confirmed her on a voice vote, 281 days after her nomination.)
Wheeler also has some interesting observations about how Obama has accomplished a slightly bigger shift in the makeup of the appeals courts than Clinton and Bush did, particularly on the U.S. Court of Appeals for the 4th Circuit. (He includes a wise caveat, as did Prof. Carl Tobias in a recent interview with Sustained Outrage, that using the party of the nominating president to predict how a judge will rule is to paint with a very broad brush.)
In 2009-10, however, Obama reduced the courts with Republican-appointee majorities from nine to seven and increased the courts with Democratic appointee majorities from two to four. In particular, the court of appeals for the Fourth Circuit, long dominated by Republican appointees, was a confirmation battleground throughout the Clinton and Bush administrations. The Senate rejected five of Clinton’s ten nominees to that court and seven of Bush’s 11 nominees. In January 2009, it had five Republican appointees, five Democratic appointees, and five vacancies. It now has the same five Republican appointees, but nine Democratic appointees and one vacancy. The Senate confirmed all four Obama nominees to the court, filling one vacancy that dated from 1994 and another from 2000. If Obama can fill the remaining vacancy in the next Congress, the court would have a strong Democratic appointee majority.
Since Wheeler wrote this, President Obama has nominated Henry F. Floyd, a federal judge from South Carolina, for the last remaining vacancy on the 4th Circuit. But it’s worth remembering that Floyd was first put on the federal bench by Bush in 2003. (So if Judge Floyd is confirmed to the 4th Circuit, will he count as a Republican appointee or a Democratic one? Again, this is why you can’t read too much into the party of the nominating president…)
Obama also sent a loud message to the senate when he renominated a slew of candidates on Jan. 5 who did not receive votes during the 111th Congress. While there was talk during the lame duck session of a deal in which the Senate agreed to confirm a handful of judges in exchange for the president dropping some of the more controversial nominees from consideration, those renominated on Jan. 5 include Goodwin Liu, Edward M. Chen and Louis B. Butler Jr.
And it’s also worth noting that while the flurry of confirmations during the lame duck session reduced the number of vacancies to under 90, that number has crept back up to 101, including the judgeship occupied by the Hon. John M. Roll. Almost half of those — 49 total, including the vacancy created by Judge Roll’s murder — have been declared judicial emergencies by the Administrative Office of the U.S. Courts.