Report

Judicial Nominations in the Bush and Obama Administrations’ First Nine Months

Russell Wheeler

After the speedy and relatively noncontentious confirmation of Justice Sonia Sotomayor, federal court watchers are upping their attention to courts of appeals and district courts. The headline of an October 16, 2009, Washington Post article captured the unease among some Obama supporters: “Obama Criticized as Too Cautious, Slow on Judicial Posts.”

October 20 marked nine months since the change in administrations, ample time to begin comparisons between the nomination process of the previous Bush administration with the current one, as to nominations made, hearings held, nominees confirmed, and nominee characteristics, even if it’s hardly enough time to predict how things will look after a year, or two, or more.

Nominations


President Bush inherited 81 federal court vacancies on January 20, 2001, and by October 20 he had made 60 nominations (not the 100 or so cited in some news accounts and blogs). Those nominations represented 73 percent of the inherited vacancies. (Of course, additional vacancies occurred in the nine months after Inauguration Day, but the start-of-term figure is a common baseline.)

Vacancies on January 20

Number of nominees

Author

Nominees as percentage of January 20 vacancies

Average days from vacancy date to nomination*

GEORGE W. BUSH

Court of Appeals

27

   24**

89%

132

District Courts

54

35

65%

199

All

81

   59**

73%

172

BARACK OBAMA

Sup. Ct.

0

1

31

Court of Appeals

13

10

77%

145

District Courts

41

12

29%

180

All lower courts (only)

54

22

41%

164

 

* “Date of vacancy” is the later date of January 20, or the date vacancy occurred or was announced.

** I exclude Roger Gregory, whom President Clinton put on the Fourth Circuit’s Court of Appeals with a recess appointment, and who was then renominated by President Bush, and confirmed by the Senate.

President Obama inherited only 54 vacancies and made only 22 circuit and district nominations by October 20, representing 41 percent of the vacancies inherited. Had the Obama administration nominated judges at the same rate as the Bush administration, it would have filled all the vacancies it inherited.

What might explain the comparatively slow pace of nominations? For one thing, the Bush administration made a concerted effort to get out of the gate early, showcasing its first 11 circuit nominees at a May 9 White House event, signaling the importance it attached to judicial nominations. By July 1, 2001, the administration had nominated 14 of 24 of its first-nine-months court of appeals nominees. Although the Obama administration made three circuit nominations before May 9, 2009, by July 1 it had nominated only five of its 10 first-nine-months circuit nominees, and average days from vacancy-to-circuit nomination were 132 for the Bush administration and 145 for the Obama administration.

Obviously, filling the vacancy created by Justice David Souter’s May 1 retirement announcement consumed energy that might otherwise have gone toward searching for lower court nominees (not to mention dealing with two wars, an economic meltdown, and an ambitious legislative agenda). Other explanations are basically conjecture at this point, but may include the difficulty of finding candidates who will accept the salary cut that most practitioners would face as federal judges—even practitioners sympathetic to the administration’s goals and emphases. And some would-be nominees may perceive a federal judgeship—especially a district judgeship—to be less attractive that it has been perceived in earlier years.

Hearings

Obama nominees, compared to Bush nominees, have fared much better in getting hearings before the Senate Judiciary Committee, despite the demands on the Committee of preparing and holding the Sotomayor hearings starting on July 13, 2009, just 42 days after the President announced her nomination.

Nominees receiving hearings

Number

% of all nominees

Avg. days, nom’n to hearing

GEORGE W. BUSH

Court of Appeals

5

21%

116

District Courts

13

37%

70

All

18

31%

83

BARACK OBAMA

Sup. Ct.

1

42

Court of Appeals

7

70%

43

District Courts

8

67%

54

All lower courts

15

68%

49

More than two thirds of Obama nominees had received hearings as of October 20 (and one more got an October 21 hearing). Those who haven’t had hearings are mainly late September and early October nominees. This hearing rate contrasts sharply with that for early Bush nominees. As of October 20, about a third had received hearings, and only a fifth of circuit nominees had. Most Obama nominees who have received hearings, moreover, got them promptly—average days from nomination to hearing were around the 50-day mark, and 43 for circuit nominees. The few Bush circuit nominees who got hearings in the first-nine-months waited an average of 116 days.

The shift from a Republican to a Democratic majority in the 2001 Senate on June 6, 2001 (with Senator James Jeffords’ decision to leave the Republicans) must explain a large part of this difference, and was a harbinger of the continued battle over circuit nominees that began in the Clinton administration and continued during the Bush administration.

Later installments of these status reports will reveal that all but one of Bush’s 24 first-nine-months circuit nominees received hearings, 17 in the 107th Congress and six after renomination in subsequent Congresses. Nineteen of the 24 were eventually confirmed, 14 in the 107th Congress and five in subsequent Congresses (including D.C. circuit nominee John G. Roberts, Jr.). The Senate confirmed all of Bush’s 35 first-nine-months district nominees during the 107th Congress.

Confirmations

Prompt committee hearings for most Obama first-nine-months nominees have not produced confirmation rates any higher than for Bush nominees. So far, the rate has been low in divided government (in 2001) and unified government (in 2009). The numbers here are too small to go much beyond the obvious fact that, by October 20, only a small number of Bush nominees had been confirmed, and only one Obama circuit and one district nominee had been confirmed. (On October 21, the Senate confirmed another district nominee; both of Obama’s district court appointments to date are to the District of South Dakota.)

Compared to Justice Sotomayor’s rapid 66-day confirmation, Judge Gerard Lynch, Obama’s sole circuit appointee to date, waited 168 days, more than the 116 average days for the three Bush circuit nominees who received confirmation by October 20. (And, for the sake of illustration, if the Senate were to have confirmed on October 20, the other two Obama circuit nominees who had been nominated in March or April, the average days to confirmation for Lynch, plus those two, would have been 195 days.)

Most observers attribute the lack of action to anonymous “holds” that senators have used to prevent floor action and the leadership’s willingness, so far, to abide them.

Nominees confirmed

Vacancies on

Number

% all nom’s

Avg. days from nom. to conf.

Jan. 20

Oct. 20

GEORGE W. BUSH

Court of Appeals

3

13%

116

27

31

District Courts

4

11%

74

54

79

All

7

13%

92

81

110

BARACK OBAMA

Sup. Ct.

1

66

Court of Appeals

1

10%

168

13

22

District Courts

1

8%

96

41

74

All lower courts

2

9%

132

54

96

The 42 vacancies created since January 20, 2009, are due mainly to Democratic-appointed district judges assuming senior status. Of the nine additional appellate vacancies, four came from Republican appointees taking senior status, one such appointee’s resigning, and the activation of a judgeship that Congress last year transferred from the District of Columbia Circuit’s court of appeals to that of the Ninth Circuit, to be activated the day after Inauguration Day. Two Democratic appointees took senior status and Justice Sotomayor’s elevation created the other vacancy. (As of October 20, 12 percent of circuit judgeships were vacant, as were 11 percent of district judgeships.)

Characteristics

We can also read the early tea leaves for possible signs of characteristics of additional Obama nominees. For two of the three characteristics examined below, Bush’s early nominees were strikingly similar to those of his 322 appointees over eight years. Whether Obama’s early nominees will similarly resemble all those he eventually appoints, of course, remains to be seen.

Percent of nominees who

would replace appointees of the other political party

are sitting judges

are white men

GEORGE W. BUSH

Court of Appeals

25%

58%

63%

District Courts

20%*

40%