On April 28, President Obama sent the Senate eight district court nominations, bringing the total to 12 district nominees in April.
Confirmation chances look bleak for any of the 12, even those with support of home-state Republican senators. Already waiting in line are 18 pending nominees—half of them with the apparent backing of their Republican senators—who have had hearings but not floor votes, and four International Trade Court nominees. Another 15 pre-April nominees—most with apparent Republican senator support—have yet to have hearings. That’s a long waiting list in a Senate that has only confirmed 15 district judges since Republicans took over the majority, especially when Senate Judiciary Committee chair Charles Grassley continues to invoke the mythical “Thurmond Rule” to justify an early-to-mid eighth-year shut down of confirmations.
As an indication of the confirmation process’s deterioration, consider that the Senate confirmed all but one of the 14 eighth-year April nominees of the three most recent two-term presidents, all of whom faced a Senate controlled by the other party.
And nominations submitted after April did fairly well also—eight of President Reagan’s 11 nominees, 12 of President Clinton’s 23 nominees, and eight of President Bush’s 18 nominees. Although the confirmation rate of those late term nominees declined, the Senate was confirming district judges as late as October.
In those previous administrations, those confirmations helped reduce the number of district vacancies, or at least kept them in check. By contrast, vacancies since January 2015 have more than doubled, to almost seventy. (Although the Senate confirmed two Reagan circuit nominees in October 1988, the latest Clinton and Bush circuit confirmations came in June and July.)
Given the slim prospects for many more district confirmations in 2016, and the even slimmer prospects of confirmations for post-March nominations, the comparatively robust district confirmations in the eighth years of previous two-term presidents is one more measure of the deterioration of the judicial confirmation process.