By Russ Wheeler, Visiting Fellow at the Brookings Institution, where he studies the selection of U.S. judges and how courts function with other branches of government and the press, among other judicial topics. Wheeler is a former deputy director of the Federal Judicial Center, research and education agency for the federal court system.
The buzz about likely nominees for Justice John Paul Stevens' Supreme Court seat is crowding out attention to the slow pace of nominations and confirmations of federal circuit and district judges. The fight over the Supreme Court vacancy will likely slow that pace even more.
The Obama administration lags behind the W. Bush administration's number of nominees and confirmations at the same point, leading to grousing from law professors and others. Hopes are fading fast among liberal federal court watchers that Obama's strong electoral victory will mean a major change -- at least in his current term -- in the mix of Democratic- and Republican-appointed federal judges, especially on the courts of appeals.
Here's a rundown of the pace of nominations and confirmations, and after that a look at some differences among Obama and Bush nominees at this point. More details are available here.
Nominations and confirmations as of April 14 2002/2010 Obama has made fewer nominations: 38 district and 18 circuit nominations, versus 69 and 28 for Bush (not including a Fourth Circuit judge whom Clinton recess appointed and Bush renominated). Obama inherited 54 vacancies, but now there are more than 100, and over 20 publicly announced future vacancies.
He has taken slightly longer than Bush to make nominations -- 263 days on average versus 228 for Bush -- and much longer to make circuit nominations: 220 average days versus 139.
The Senate Judiciary Committee has scheduled proportionately more hearings for Obama nominees than it had for Bush nominees. Ninety-five percent of Obama nominees who had been sent to the Senate before February have had hearings, versus 61% of comparable Bush nominees. (Hearings for five more nominees are scheduled for Friday, April 16.) And Obama nominees who got hearings got them an average of 42 days from nomination -- 48 average days for Obama circuit nominees, versus 145 for Bush circuit nominees.
Confirmation rates, though, are nearly identical -- 69% for Obama nominees versus 66% for Bush's, counting only judges nominated before December of 2001 or 2009. Obama's gotten seven circuit nominees confirmed (58% of his pre-December nominees), while Bush got six of his 27 circuit nominees confirmed (22%) in the same time. Obama's confirmations, though, took longer: from nomination, an average of 147 versus 126 days for Bush's, and an exceptionally longer 202 average days for his circuit confirmations, versus 154 for Bush's. Of all the first 14 month confirmations -- Obama's and Bush's -- only for Obama's initial circuit nominee, David Hamilton, were nay's at least a fourth of the yea's.
What conclusions to draw from this data dump? First, unified government is having an effect on the rate and timing of Senate Judiciary Committee hearings -- a necessary but hardly sufficient step toward confirmation -- but the overall confirmation rate (for pre-December nominees) is essentially the same, unified government or not. Only Obama's circuit nominees have a higher confirmation rate, and the raw numbers are low enough to caution reading much into that. Sixteen of Bush's 31 circuit nominees in the entire 107th Senate got confirmed, roughly the same for Obama's pre-December circuit nominees so far. If, by adjournment, the Senate confirms two more circuit nominees, the confirmation rate for Obama's circuit nominees will about match Bush's. (This assumes no more circuit nominations in 2010; for what it's worth, Bush made only three circuit nominations in 2002, one of whom was confirmed in the 107th Senate, the other two in later Senates upon renomination.) But whether the Senate confirms even two more Obama circuit nominees -- as modest as that would be -- depends partly on how much time and energy the Judiciary Committee and full Senate spend fighting over Stevens' replacement.
The confirmation rate and considerably longer time for Obama's appointees to get confirmed -- despite unified government -- is due, according to Republicans, largely to Senate time spent on Obama's legislative agenda, although Republicans concede that they have used holds to delay or preclude floor action, even for nominees who, when finally approved, received no negative votes. According to a Fox News paraphrase, a Republican spokesman said Democrats "could get around that by filing for cloture," which they have done in some cases. But, especially for non-controversial nominees, what's the point of refusing unanimous consent except to gum up the works?
Demography Although overall confirmation rates for Obama and Bush nominees are similar, their gender, racial, and ethnic mix is noticeably different. Thirty percent of Obama nominees are white men, and 27% are white women, versus 68% and 19% respectively for Bush nominees at this stage, figures roughly similar for all his circuit and district appointees over eight years, as discussed here. And Obama has nominated more sitting judges -- 64% of his nominees versus 47% for Bush, and fewer lawyers in private practice, 25% to 40%.
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The numbers, at this point, are still small enough to caution against drawing firm conclusions. But at this stage anyway, it appears that a strong electoral victory and a Senate and White House controlled by the same party is not enough to quiet the effect of political polarization on the confirmation of federal judges. Whatever Obama's success, however, his appointees are likely to contribute to continuing changes in the demography of the federal judiciary.
[Image via Wikimedia Commons.]