Fallout From Past 8 Years Affects Judicial Nominees

Posted December 9, 2009 at 3:20pm

As we near the end of President Barack Obama’s first year in office, now is a good time to take stock of his judicial nominations. Of late, this has been an issue of consternation for Democrats who are concerned both that the president has been too slow in making nominations and that Senate Republicans are obstructing confirmations.

In order to get a better view of the matter, it is valuable to compare how nominations have been handled this year with how the process went in 2001, President George W. Bush’s first year in office.

Judicial nominations today are arguably the most polarizing area in the political arena. Once-sleepy hearings for obscure court judges have become partisan circuses, and both parties use the issue to rally support among their activist bases. The fight over nominees may have reached its boiling point in Bush’s tenure during the time Democrats controlled the Senate in 2001 and 2002 — and after.

In 2001, there were a total of 122 vacancies on the lower federal courts, 36 of which were on the circuit courts and 86 on the district courts. For the openings, President Bush made 65 nominations in 2001, including 29 to the courts of appeals and 36 to the district courts. Of these, 28 were approved in 2001: 22 to the district courts and six to the circuit courts.

Clearly, Democrats curbed the confirmation rate to a pace much slower than it would have been had the GOP held the majority in the Senate. The average wait for Bush’s nominees, whether they were ultimately confirmed or never taken up was about seven months.

Bush’s 2001 district court nominees waited an average of 111 days, while nominees to the circuit courts idled more than 11 months. This includes all 29 circuit nominees made in 2001, 13 of which were blocked from a confirmation vote through the end of the 107th Congress.

For his part, Bush was fairly aggressive in making nominations during his first year. For just under every two vacancies, Bush made a nomination, with four circuit nominees for every five openings on the courts of appeals. His ability to obtain confirmations was hampered by the Democratic Senate, but this did not freeze the process completely as the overall success rate of 2001 — named circuit court nominees stood at 55 percent by the end of 2002.

By the simplest indicators, Obama has been slower in making nominations despite an almost-equal number of vacancies as in 2001. Yet, while Democrats slowed down the rate of confirmations in 2001 and 2002, Senate Republicans have brought it to a near-complete halt in 2009.

As of Dec. 8, there have been 102 judicial vacancies: 78 on the district courts, 23 on the circuit courts, and one at the Supreme Court. In turn, Obama has so far made 30 nominations, including 12 circuit nominees. This translates to just over one nomination for every four vacancies, well behind Bush’s 2001 pace; Obama’s rate for circuit court vacancies-to-nominations is 2-to-1.

As far as how the nominations process has moved this year, the situation is not entirely analogous to 2001, at least in scope.

Obama’s judicial nominees have waited an average of 84 days. Comparatively, Bush’s 2001 nominees lingered an average of 214 days before confirmation or the finish of the 2001-02 Congress. Notwithstanding the smaller sample size, Obama’s nominees have not languished as long as Bush’s nominees during each president’s first year.

Conversely, the raw data show that on a key measure, minority Senate Republicans have been more active in bottling up the confirmation of judicial nominees this year than majority Democrats were eight years ago.

In 2001, the Democratic-controlled Senate confirmed 28 total nominees to the federal courts; as of mid-November 2009, the Senate, in large part because of Republican objections, has confirmed just 11 judges, and that includes Supreme Court Justice Sonia Sotomayor.

At present, just 37 percent of President Obama’s 2009 choices have been confirmed. At the end of 2001, 43 percent of Bush’s nominees had been approved, and that number rose to 80 percent one year later.

Given the political factors involved, it is understandable that many Democrats are antsy. President Bush’s assertiveness in making judicial nominations came on the heels of his winning a razor-thin election and he came into office facing an evenly divided Senate. Conversely, Obama was elected by a wide margin and his party has enjoyed a huge majority in the Senate since his inauguration.

At least when compared with Bush’s first year in office, Obama is lagging way behind in judicial nominations. And while critics are right to point out that the Senate has been more inactive in 2009 than 2001, they should appreciate that what is happening to Obama’s judicial nominees in Congress is a legacy from past activity by both parties.

Mark Greenbaum is an attorney and writer in Washington, D.C.