On January 1, 2011, Chief Justice John G. Roberts challenged the “political branches to find a long-term solution to [the] recurring problem” in the “process of filling judicial vacancies.” Complaints in the first two years of the Obama administration about the paucity and slow pace of nominations and confirmations and complaints that many nominees were “out of the mainstream” recalled similar complaints over the last 18 years. There are no agreed-upon standards for the pace of the process and confirmation rate, but we can compare Obama’s first two years with those of his two immediate predecessors.1
President Obama, in the 111th Congress (2009-10), had a 60-40 Democratic Senate majority for about half the term, then 59-41 (counting, as Democrats, Independents who caucused with the Democrats). President Clinton, in the 103rd Congress (1993-94) had a 57-43 Senate Democratic majority. President Bush faced a 51-49 Democratic Senate majority for most of the 107th Congress (2001-02).
As to outcomes:
- Obama essentially matched Bush, but not Clinton, on court of appeals (or “circuit” or “appellate”) confirmations, but had less success than either Clinton or Bush on district judge confirmations, both as to confirmation rates and time from nomination to confirmation.
- Obama had, in two years, a slightly greater effect than either predecessor in their first two years in changing the party-of-appointing president balance on the courts of appeal.
- Obama’s appointees included, proportionately, fewer white males and members of the private bar.
- Obama district court nominees from states where senators used committees to screen potential nominees don’t appear much different from nominees in other states in terms of background or how they fared in the nomination and confirmation process.