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Tempering Judicial Confirmation Optimism

Russell Wheeler

For Democrats, judicial confirmation news has been getting better. One article—“Obama’s Shocking Success on Judgeships”—tells a rosier story than Obama’s early years of paltry nominations and confirmations, as does another recent article.

But administration supporters should be wary of getting too shocked, too soon.

True, compared to the Bush administration at this point, Obama has submitted more nominations (301 to 272) and gotten more confirmations (261 to 242) and has an overall confirmation rate basically the same as Bush’s (87% to 89%). His appellate confirmation rate is now 83%, compared to Bush’s 72%, but the 88% of Obama’s confirmed district nominees trails Bush’s 94% district court confirmation rate in early June 2006.

2014 has seen 47 confirmations in less than six months, compared to 43 in all 12 months of 2013 and 48 in all of 2012. The late 2013 rules change—to require a simple majority rather than a super majority to end filibusters on most nominations—explains the confirmation of three appellate nominees who had been filibustered under the old rule. How many of the 51 other post-rules-change confirmations are due to the change is hard to say. Seven of those 51 confirmations got negative votes in the high 30/low 40 range. Under the old rules, Republicans might have threatened or undertaken filibusters against some of the seven, but that doesn’t mean that Republicans would have been able (or even have tried) to filibuster all of them. For one thing, before the rules change, nine confirmations had negative votes in the high 30/low 40 range.

The more likely reason for 2014’s confirmation juggernaut is Democratic fears that confirmations will grind to a near-standstill if Republicans take control of the Senate in 2015. Bush, overall, got 321 judges confirmed over eight years. Obama will need to add 60 more confirmations to his 261 so far to match Bush’s record. He’s unlikely to get another 47 during the rest of 2014, given election year recesses. If Democrats retain control of the Senate, getting more than 321 confirmations for his full eight years will be well within reach. If they don’t, 321 could be beyond reach, given Senate Republicans’ professed outrage over the filibuster’s demise.

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It’s also true that Democratic appointees are now majorities among the active status judges in nine of the 13 courts of appeals, versus one when Obama took office. But in all but two of those nine courts, the majorities are narrow, in the two to three range, and the count does not include senior judges, many of whom participate in cases, albeit at a reduced level. Fifty-four percent of active status appellate judges are Democratic appointees, but 65 % of senior status appellate judges are Republican appointees.

There are other reasons for tempering the optimism. One is that despite more confirmations than Bush at this stage, Obama still faces more vacancies—62 now versus 48 on June 10, 2006.

Why? One reason is that Obama has had slightly more vacancies to fill. Up to this point, Bush had been presented with 260 vacancies—those he inherited or created by appointing judges to higher courts, those created when judges took senior status (semi-retirement), and those Congress created by the piecemeal addition of new district judgeships—plus a small handful created by deaths and resignations.

Obama has confronted slightly more than 287 vacancies, including an upsurge in senior status vacancies, mainly created by Clinton appointees. So, while the Senate and administration are moving at a faster pace than did their Bush era counterparts, they have more ground to cover.

But that’s not the whole story. There are high numbers of long-standing vacancies that don’t even have nominees. Forty-one vacancies announced or created at least six months ago have no nominees. Thirty-five of them (86 %) are in states with at least one Republican senator. And those vacancies are older—a median age of 364 days versus 279 days for the six nominee-less vacancies in states with two Democratic senators. There is plenty of ruckus over whether Republican senators are playing hardball with their “blue-slip” vetoes or the White House is unwilling to compromise with them, but the lop-sided numbers suggest that it’s not all the administration’s fault. At this point in 2006, there were 28 such nominee-less vacancies (excluding two in the senator-less nation’s capital). Of the 28, 63 % were in states with at least one Democratic senator.

Finally, although the pace of confirmations has picked up, the time from nomination to confirmation continues to drag. From 2009 to 2012, median days to district confirmation were 216; in Obama’s second term, the figure is 223. Overall the figure is 218 median days, versus 137 in the Bush administration at this point; comparable court of appeals figures are 229 median days for Obama and a higher 245 for Bush.

To sum up: the process of staffing the federal courts is getting better, but given the process’s long-degraded state, that’s not saying much.

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