Op-Ed

Judicial Nomination: Into the Home Stretch

Russell Wheeler

With Congress’s final adjournment looming in a few months, claims are proliferating over which party treats the other party’s judicial nominees worse. Ranking Senate Judiciary Committee member Jeff Sessions said that “Democrats’ systematic obstruction of judicial nominees during the Bush administration was unprecedented then, and it is now.” Democrats have responded that Republican obstructionism has reached new heights during the Obama administration. As of September 27, both are right and both are wrong, and some of the blame for current judicial vacancies rests with the Obama administration’s slowness in making nominations.

The New York Times editorialized last week that “at the comparable point in the Bush presidency, the Senate had confirmed 61.4 percent of Mr. Bush’s nominees. For Mr. Obama, it’s under 50 percent.” That kind of comparison, typical of many by those on the left and right, has two problems:

  • First, it lumps district and court of appeals nominees together, obscuring differences in the treatment of nominees for different judicial posts.
  • Second, it fails to account for the time the Senate needs to prepare for hearings and move nominees to floor votes. To say that President Obama’s confirmation rate today is lower than President Bush’s obscures the fact that some nominees, certainly those sent up in July of an election year, would be unlikely to get confirmed by mid-September in any circumstance.

As of September 26—Obama has made fewer nominees than Bush did and has taken longer to make them. His circuit nominees have received more hearings, more quickly, than did Bush’s circuit nominees. His appointees have waited longer after hearings for floor votes. His confirmation rate for pre-late May circuit nominees is slightly higher than Bush’s and his confirmation rate for similar district judges is noticeably lower—in some ways the most intriguing development of all.



Judicial vacancies have proliferated more under Obama than Bush.

President Bush inherited 54 district vacancies and 27 circuit vacancies. As of September 26, 2002, there were 47 and 26; the Senate confirmed enough judges to stay slightly ahead of the vacancies created since inauguration day.

President Obama inherited 41 district and 13 circuit vacancies, but, unlike in 2001-02, vacancies have increased considerably. District vacancies have more than doubled, to 84, and circuit vacancies have increased by almost half, to 19.

There are various reasons for the spike in vacancies. One of them is not that they are all so recent as to provide insufficient time to send names to the Senate. Of the 52 district vacancies for which no nominees are pending, 21 have been vacant for over a year, as have four of the eight circuit vacancies that have no nominees.

Looked at another way, by September 26, 2002, Bush had made 94 district and 31 circuit nominations. Obama has made 63 and 22, respectively. The average days from vacancy creation or announcement (or inauguration day for existing vacancies) is about the same for district nominations—277 for Bush, 325 for Obama—a 48 day difference likely attributable largely to Obama’s having moved the American Bar Association Standing Committee on the Federal Judiciary’s nominee investigations back into the prenomination phase. It evidently takes the committee about 30-40 days to complete most investigations. Under Bush, the committee began its investigation once a nomination went to the Senate.

But Obama has taken much longer to make circuit nominations, 241 average days versus 146 for Bush, a 95 day difference that’s hard to attribute solely to the ABA investigations.

Responsibility for the surge in vacancies hardly rests entirely with the administration. For one thing, the pace of nominations has clearly picked up: 12 circuit nominees in 2009, 10 by late July 2010; 21 district nominees in 2009, 42 in 2010. (Likewise, only about a third of Bush district nominations came in 2001, although all but three of his circuit nominations did, and all were there by June 26, 2002.)

The reality in the Senate has been quick hearings for Obama nominees, but that has not produced higher confirmation rates than for Bush nominees or shorter times from nomination to floor votes.



Obama circuit nominees (but not district nominees) have gotten more hearings, more quickly than did Bush nominees.

For Bush’s 83 district nominees in the Senate by July 26, 2002, 92 percent had hearings, compared to 84 percent for Obama’s 62 similarly situated nominees—but the Kagan Supreme Court nomination could explain part of that. Average days, nomination to hearings, were 98 for Bush and 51 for Obama, a 47-day difference likely explained by the Senate’s no longer having to wait for the ABA’s post-nomination investigation.

For circuit nominees, the picture is different. As of this date, 61 percent of Bush’s 31 pre-July 26 nominees had hearings, and they waited an average of 240 days for them. By contrast, 91 percent of Obama’s 21 similarly situated nominees have had hearings, waiting 62 days for them—a difference that can’t be explained by the shift in timing of the ABA investigations.



Obama pre-May 26 circuit nominees have slightly higher confirmation rates that Bush circuit nominees, but the much larger number of district nominees have fared worse.

The problems that have beset circuit nominees for two decades are starting to affect district judge nominees.

On September 26, 2002, Bush had seen confirmations of 43 percent of his 30 pre-May 26 circuit nominees, with 236 days on average from nomination to confirmation. Obama’s circuit confirmation rate is higher for his 18 like-situated nominees—61 percent, although average days from nomination to confirmation, 232, was virtually the same as for Bush.

But on September 26, 2002, Bush had seen 90 percent of his 71 pre May-26 district nominees confirmed (average days, 134), but only 58 percent of Obama’s 52 pre-May 26 district nominees have been confirmed (average days: 134).

Even though Obama’s nominees are getting to hearings faster, those who get floor votes wait much longer for them, neutralizing any effect of a Senate majority’s willingness, in unified government, to try to run nominees quickly through the hearing process. Although Bush’s district appointees moved from hearings to floor votes in 36 days and his circuit nominees in 48 days, Obama’s district appointees have waited 92 and 183 days, respectively. That’s due to a mixture of Republican holds, or threats of holds, and the Senate leadership’s reluctance to devote scarce floor time to breaking those holds.



How might the numbers look when the 111th adjourns sine die?

Author

The 107th Congress eventually confirmed slightly over half of Bush’s circuit nominees—52 percent. Obama will have the same result if the Senate receives no more circuit nominees and confirms no more of those there now—11 of 22. But confirmations are possible for at least one or two of his circuit nominees who have bi-partisan support—Utah’s Scott Matheson, for example—which would up the percentage closer to what one might expect in a situation of unified rather than divided government.

But the 111th won’t do as well as the 107th as to district judges. Until now, high percentages of district nominees have almost always made it through. Consider this: of Bush’s district nominations submitted by July 1, 2002, the Senate confirmed 98 percent (all but two, one of whom had withdrawn after an “unqualified” ABA rating).

For Obama to match that 98 percent rate, the Senate will need to confirm 24 more district judges between now and final adjournment—highly doubtful, and producing an unexpected comparison between confirmations under divided and unified government.

What accounts for this downturn in the percentage of district confirmations? Republicans claim that Obama has nominated mainly would-be “activist” judges, but that’s hard to square with the lack of enthusiasm that the Democratic base has shown for most Obama nominees. The more plausible explanation is that political polarization is claiming one more of the unwritten rules that have traditionally sustained the federal judiciary—routine, bi-partisan approval of professionally competent district nominees whom both home-state senators endorse.