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	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 107^th Congress and six after renomination in subsequent Congresses. Nineteen of the 24 were eventually confirmed, 14 in the 107^th 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 107^th 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%	66%
All	22%	46%	64%
BARACK OBAMA
Sup. Ct.
Court of Appeals	40%	90%	30%
District Courts	42%	58%	17%
All lower courts	41%	73%	23%
* In addition to seven district nominees for seats vacated by Democratic appointees, six district nominees were for new judgeships that Congress had created during the Clinton administration.

Replacing other-party appointees

A president’s ability to use appointments to change the decisional outputs of the federal courts depends in part on the degree to which he can replace appointees of the other party with his own appointees, especially on the courts of appeals, given their role in shaping the law. The party of the appointing president is not a very good predictor of a court’s or a judge’s future decisions, but it’s about the best we have.

In his eight years in office, President Bush appointed more than a third of the active court of appeals judges who were on the bench on October 20, 2009—55 of 158—but his ability to affect those courts’ decisions was limited by the fact that only 25 percent of his appointees replaced appointees of Democratic presidents. (By contrast, 52 percent of President Clinton’s circuit appointees replaced Republican appointees.) As of October 20, 2001, six of President Bush’s 24 circuit nominees—again, 25 percent—replaced or would have replaced Democratic appointees.

Forty percent of President Obama’s early circuit nominees would replace Republican appointees, which may point to greater changes in the courts of appeals’ party-of-appointing-president composition than Bush could achieve.*

Appointing sitting judges
In his first nine months, President Obama, much more than President Bush, has turned to sitting judges as district and circuit nominees. Only one of his circuit nominees is a practicing attorney. Seven are federal district judges; two are state appellate judges. President Bush’s early nominees included lower percentages of sitting judges for both the appellate and district courts, percentages somewhat different from those for all 322 of his appointees. Forty-nine percent of all his 61 circuit appointees were sitting judges (similar for other presidents since Eisenhower).

Forty-nine percent of his 261 district appointees were also sitting judges (state judges and U.S. magistrate and bankruptcy judges), which reflects a continuation of a trend that has been accelerating since the Eisenhower administration—fewer private lawyers, more sitting judges.

President Obama’s early nominees—58 percent of his district nominees are judges—suggest that the trend may continue, but it is too early to do more than speculate. If it does continue, it may support the view that federal judicial salaries are changing the composition of the judiciary, inasmuch as, for sitting judges, appointment to the federal district or appellate bench represents a salary increase.

Race and ethnicity
The percentage of white males among President Bush’s early nominees—64 percent overall—foretold almost exactly the demographic make up of all his appointees. Sixty-four percent of his circuit appointees were white males, as were 67 percent of his district appointees—figures higher than his recent Democratic predecessors, but lower than his Republican predecessors.

President Obama’s few nominees at this early juncture are heavily weighted toward women and ethnic minorities. Overall, less than a quarter of his appointees are white men. The three Asian-Americans among his 12 district nominees would increase the complement of active Asian-American district judges from eight to eleven.

Age
(not shown on the table) The average age upon appointment of circuit judges for the last thirty years or so has hovered around 50 years. The average age of President Obama’s ten circuit nominees is considerably higher—56.

Conclusion

Probably the two most striking findings about this early comparative look at the current and most recent administrations’ early nominees are: 1) the relatively paucity of Obama administration nominees, and 2) the delay in full Senate action on those nominees—quick Judiciary Committee hearings but little more. It is too soon to say whether these early developments presage an administration with a less energetic policy on judicial nominations than its predecessor; greater difficulty in identifying qualified candidates, especially non-judges; or a Senate that will not confirm large numbers of nominees because of unchallenged minority delaying tactics—or some combination of all three.

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*

See the text and tables in R. Wheeler, “How Might the Obama Administration Affect the Composition of the U.S. Courts of Appeals?” (March 18, 2009), available at https://www.brookings.edu/opinions/2009/0318_courts_wheeler.aspx