On Judicial Confirmations — History and Numbers

Partisans in judicial nomination fights like to play the victim.  As each side tells it, obstruction of judicial nominees is all the other side’s fault.  Each act of contemporary obstruction is justified by some act of obstruction that came before.  The reality, however, is that there are no clean hands in these fights any more.  For over twenty-five years the two parties have been engaged in an escalating game of tit-for-tat.  Each time the tables are turned, the opposition party retaliates in kind, and then some.  Given the reactions to my post yesterday on judicial nominations, I thought it would be worth recounting the history (as I have before) — with the relevant data — and then to explain what it means.  I’ll follow this up with a post on what I think should be done, in light of this history, to end the obstruction of judicial nominees.

In the context of appellate nominations, Senate Democrats decided to begin opposing some of President Reagan’s nominees in 1986.  Although they did not frame their opposition in ideological terms, this initial effort was clearly motivated by a desire to prevent the Reagan Administration from stocking the courts with judicial nominees who shared the administration’s conservative judicial philosophy.  This initial effort yielded a few victories — a few nominees were defeated (including Jeff Sessions, who now sits on the Senate Judiciary Committee) — but 88 percent of Reagan’s appellate nominees were confirmed.  Efforts to block conservative judicial nominees by delaying confirmation increased during the latter half of George H. W. Bush’s Administration and, as a consequence, only 79 percent of his appellate nominees were confirmed.  (Data on confirmation rates are taken from this Brookings Institution report by Russell Wheeler.)

President Clinton’s nominees had relatively smooth sailing during his first two years, when Senate Democrats held the majority, but his administration was relatively slow to make nominations.  As data available from the Federal Judicial Center shows, at the end of his first year in office, President Clinton had named nominees for fewer than twenty percent of judicial vacancies.  For the twenty appellate vacancies in November 1993, Clinton had only named two nominees. The Clinton Administration’s failure to move on judicial nominations became a problem when Republicans took the Senate in 1994.  With fewer nominees in the confirmation pipeline, it was relatively easy for Republicans to keep Clinton’s confirmation numbers down.  All they had to do was slow down the process — and they did.

Despite GOP-orchestrated delays, Clinton saw 77 percent of his appellate nominees confirmed (compared to his predecessor’s 79 percent).  And whereas Senate Democrats had focused their prior efforts on blocking appellate nominees, Senate Republicans slowed the rate of district court nominees, resulting in Clinton seeing only 86 percent of his district court nominees confirmed.  (The first President Bush only saw 79 percent of his district court nominees confirmed, but as Wheeler notes in the report linked above, this is largely due to the significant number of new district court judgeships created in 1990.  Thus a better benchmark is the 90+ percent confirmation rate for Reagan’s and Carter’s district court nominees.)

Senate Democrats were not particularly happy with Republican treatment of Clinton’s nominees, particularly those that were held for extended periods, so they returned the favor as soon as they had the opportunity. President Bush offered an olive branch in May 2001 when he re-nominated Roger Gregory to the U.S. Court of Appeals for the Fourth Circuit to fill a seat that had been open when Clinton took office, and remained vacant until Clinton recess appointed Gregory at the end of his second term.  Bush also nominated a prominent Clinton district court nominee, Barrington Parker, to the U.S. Court of Appeals for the Second Circuit.  These gestures did not earn much goodwill, and Senate Democrats resolved to obstruct the confirmation of appellate nominees particularly those, like Miguel Estrada, who were likely Supreme Court picks.   They slowed the process down — much as Republicans had done to Clinton — while they had the majority.  Once they lost control of the Senate, however, they tried something new: filibustering appellate nominees.  In all ten appellate nominees were successfully filibustered.  Five of these were later confirmed after the Gang of 14 deal, whereas the other five were never confirmed.  Of note, while the Gang of 14 deal led to the confirmation of some filibustered nominees, many Senate Democrats (including a Senator from Illinois who now sees things from the other side) continued to vote against cloture on high-profile appellate nominees.

In the end, President George W. Bush saw only 67 percent of his appellate nominees confirmed — a lower percentage than any of his predecessors.  This was despite efforts to make up for past GOP obstruction at the start of his term and a later deal in which Bush re-nominated another stalled Clinton nominee in exchange for confirmation of one of his own. On district courts, however, Bush’s nominees fared better.  95 percent of his district court nominees, which is in line with the pre-Clinton norm.

Nothing motivates a Senator like a need for payback, so Senate Republicans targeted President Obama’s judicial nominees from the get-go.  Their task was made easier by the Obama Administration’s tardiness in making judicial nominations.  Like Clinton, President Obama made nominations for fewer than 20 percent of the judicial seats vacant at the end of his first year in office.  What nominations were made, were made at a slow rate, making it easy to target individual nominees.

Beginning in 2009, Senate Republicans also embraced a tactic they once scorned: the filibuster of judicial nominees.  As Senator Jeff Sessions explained in a 2009 op-ed, for Republicans to ignore the fact that “the rules had changed” would constitute “unilateral disarmament.”  Thus until an agreement is reached to eliminate the filibuster of judicial nominees of either party, the tactic would be on the table.  And so, the filibusters eventually began.

While some GOP Senators have voted against cloture for judicial nominations consistently, cloture has only been defeated for three — Goodwin Liu, who was defeated; Catilin Halligan, whose nomination is still pending for the U.S. Court of Appeals for the D.C. Circuit; and Robert Bacharach, who was subsequently confirmed in February 2013.  So, for purposes of comparison, Senate Democrats successfully filibustered ten Bush judicial nominees, ultimately defeating five.  Thus far, Senate Republicans have successfully filibustered three of President Obama’s judicial nominees, and have thus far defeated two (including one that is still pending).

Despite Republican obstruction, President Obama saw 71 percent of his appellate nominees confirmed during his first term — more than G.W. Bush, but fewer than Clinton or G.H.W. Bush.  At the district court level, however, the confirmation rate for President Obama’s nominees dropped to 80 percent.  (Note: The Wheeler study reports a figure of 78 percent through Dec. 12, 2012.  Seven more district court nominees were confirmed after December 12 in 2012.)  The slow and steady — but definitely slow — pace of confirmation has continued since.  Already in 2013, three more district court nominees and three more appellate nominees have been confirmed.

What this history shows is that there are no clean hands. for over twenty-five years, Senators have engaged in an escalating game of tit-for-tat, in which each side seeks to out do the other, has now gone on for over twenty-five years.  Should this trend continue, things will only get worse.  What began as a targeted effort to defeat some nominees morphed into the use of procedural delays to slow confirmations.  What began as a fight over appellate nominees, has broadened to include nominees for district courts.  Whereas delay was once confined to the majority’s use  of agenda control to slow down the rate of confirmation and the occasional exercise of home-state prerogatives (through blue slips), it has since been expanded to filibusters of well-qualified nominees.

The Independent Counsel law was only laid to rest once Presidents from both parties had felt its sting.  Now that both parties have seen highly qualified judicial nominees blocked — filibustered even — perhaps we are reaching a similar point with judicial nominations.  The problem is that neither side will unilaterally disarm — not when each feels the other has committed the more grievous wrong.  In my next judicial nominations post, I’ll discuss two potential pathways for solving the judicial confirmation mess — assuming, of course, there are those who think the obstruction of qualified nominees is a problem worth solving.