ACSBlog

By Russell Wheeler, a visiting fellow in the Brookings Institution’s Governance Studies Program

The judicial confirmation arena has been a battleground during the Obama administration, as it was during the Clinton and Bush administrations (described at greater length in a recent Brookings post from which this post is drawn).

CONFIRMATION RATES were in the 90 percent range for court of appeals nominees in the 1970s and 1980s but deteriorated in the Clinton and Bush administrations to the low 70 percent range. The Senate, by the end of 2011, had confirmed 67 percent of Obama circuit nominees — although excluding post-July 2011 nominees from the mix raises the rate to 81 percent. The circuit confirmation rate by the end of Obama’s current term is likely to be closer to 67 than 81 percent.

District confirmations, on the other hand, hovered around the 90 percent mark through the W. Bush administration, but stand now at 73 percent for the Obama administration — 83 percent for pre-August 2011 nominees.

DISTRICT COURT VACANCIES, due in part to the comparatively low confirmation rate, have increased during the Obama administration — from 41 in January 2009 to 67 at the end of December 2011. By contrast, district court vacancies fell sharply during the first three years of the Clinton and Bush administrations. Obama has held circuit vacancies fairly steady, as did Clinton, although they decreased during Bush’s first three years.

The increase in district vacancies during the Obama administration has two drivers besides the confirmation rate. One is the comparatively low number of nominees submitted — 133 by the end of 2011, versus 179 and 165 at the end of Clinton’s and Bush’s first three years. The low number of nominations has exasperated liberals who looked to Obama to offset the results of the Bush administration’s determined judicial nomination strategy. Their only consolation is that the pace of nominations has picked up since the slow start in 2001.