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Record Lame Duck Confirmations Pad Obama’s Improving Judicial Record

Russell Wheeler

President Obama’s judicial confirmation rate after six years in office exceeds that of President Clinton and President Bush at this point of their presidencies, and returns us momentarily to the days several decades ago when confirmation rates above 90 percent were the norm. Overall, Obama had a six-year confirmation rate of 92 percent vs 89 percent for Clinton and 84 percent for Bush.

Obama district court nominations

 

Obama appeals court nominations

What explains Obama’s success? Most commentators have credited almost entirely the Senate Democrats’ late November 2013 reduction in votes needed to end filibusters and allow confirmation votes—51 rather than 60. But because B follows A doesn’t necessarily mean A caused B. Most of those 96 confirmations after November 21, 2013, were by voice vote or with only a few nay votes. Only 15 of the 96 votes fell below 60 yeas, suggesting (we certainly can’t be sure) that the great majority of the 2014 confirmations would have occurred even under the old rule.

There’s no doubt that 2014 saw a surge in confirmations—89—more than in any single year for these three presidents except in 1994, and a record number of confirmations in the post-election lame duck session.

Number of judges confirmed each year

Clinton, 1993-2000; Bush 2001-2008; Obama 2009-2014

Most likely, the main cause was Majority Leader Harry Reid’s determination to use the floor time necessary to get as many confirmations as possible before Democrats lost their Senate majority.

As the 113th Congress ended, this was the vacancy picture:

table3

Even if Obama promptly submits nominees for these and other vacancies that arise (an important “if”), few expect the Republican-majority Senate to move nominations at anywhere close to 2014’s pace. But, if history is any guide (another important “if”), Obama can expect at least a modest rate of confirmations. The three most recent two-term presidents, all of whom faced Senates controlled by the other party, saw roughly a fifth of all their judicial confirmations during their final two years.

Bush judicial nominations in last two years

Clinton judicial nominations in last two years

Reagan judicial nominations in last two years

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