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Judicial Nominees By the Numbers:

A reader who follows judicial nominations quite closely sends along the follwing comment on my recent judicial nominations post:

In some respects, your numbers are technically correct, in that you have the number of confirmed divided by the number of nominations. But using nominations [as the CRS report did], instead of nominees, as the denominator in any calculation when evaluating the percentage of people appointed can lead to misleading calculations if you're not precise about the language you use. President Clinton, for the appellate courts, made 115 nominations, of which 65 were confirmed, hence the 56.5% number. But those 115 nominations were of 90 nominees (25 were renominations of people who had already been nominated), so the more accurate calculation for President Clinton, if you're talking about nominees, as you do in the last sentence quoted above, would be 65 confirmations of 90 nominees, or 72.2%. The comparable numbers, for the courts of appeals, for Presidents Carter, Reagan, and H.W. Bush, are 93.3%, 88.3%, and 79.2%, respectively. For Carter, Reagan, and H.W. Bush, the differences are smaller, in part because there were fewer returns by the Senate and thus fewer renominations.

For President George W. Bush, the Senate has 59 confirmed of 82 nominees, or 72.0%. The nomination-nominee numbers are markedly different for President Bush because there have been many more returns, and therefore many more renominations, in this administration than in previous administrations. Part of this comes from all pending nominations being returned in 2001 after the Senate control flipped from Republican to Democratic, part of it has come from long-running stretches of nomination, return, and renomination of the same person. Terrence Boyle was nominated to the Fourth Circuit six times by the current President.

I suspect your hand calculations for the current President may conflate nominations and nominees in the same statistic and, as a result, may confuse your readers. Without seeing how you got the 67% and 56% numbers, I can't be sure. By the metric of nominations, the Senate has confirmed 59 of 150 nominations to the courts of appeals, or 39.3%. But the 72.0% number looks at nominees, not nominations, and may better reflect the Senate's record on this issue, though, of course, it doesn't fully account for the fact that some individuals have had to go through multiple nominations before being confirmed by the Senate.

These statistics take as their unit of analysis the "President-person", so Roger Gregory and Helene White are 2 of the 25 unconfirmed Clinton nominees; Gregory is also one of the 59 confirmed W. Bush nominees, and Helene White is, for now, also one of the 23 unconfirmed W. Bush nominees.

The reader is correct that I was not sufficiently attentive to the nominee/nomination distinction, and I thank him for the note.

PLR:
A reader who follows judicial nominations quite closely sends along the following comment...

That's for sure. Well done, and interesting.
6.10.2008 9:30am
Ben P (mail):

For President George W. Bush, the Senate has 59 confirmed of 82 nominees, or 72.0%. The nomination-nominee numbers are markedly different for President Bush because there have been many more returns, and therefore many more renominations, in this administration than in previous administrations.


Doesn't this lend more strength to the argument that Bush's numbers are partially do to renominating contentious nominees.
6.10.2008 9:59am
krs:

Doesn't this lend more strength to the argument that Bush's numbers are partially due to renominating contentious nominees.

Maybe, but that leads to the question of what's so "contentious" about them.
6.10.2008 11:14am
taney71:
The CRS report in question does have tables on nominees and nominations. In fact there is a CRS report just on what a nominee and nomination is.
6.10.2008 11:24am
Sarcastro (www):
Bush shows how nominatinosh should be done: Do not consult with Congress, and when they don't act, keep renominating till they do.

It's kind of like how if you have a square peg, you shouldn't look at the hole, you just whack away with your hammer till your problem is solved, one way or another

Deliberation and consensus between two branches about the third is unseemly. What was Clinton thinking, talking to Orin Hatch? I doubt the founders envisiones cooperation like that.
6.10.2008 11:31am
Ben P (mail):

Maybe, but that leads to the question of what's so "contentious" about them.


I think that's fairly obvious, although I freely admit I'm generalizing quite a bit.

Ignoring "legal doctrine" as a stand alone abstract, many of the policies enacted by the courts over the past 50 years or so have been *ahead* of the majority of the population in this country politically.

Some judges wish to roll back those decisions. Whether or not they wish to do so for political motivations or as a matter of legal doctrine is in dispute, but in the purest sense of the word (and without any negative cannotation) they are reactionary. They wish to revert to the legal doctrines in place at an earlier time.

Regardless of whether or not their motivations for rolling back these precedents are doctrinal in nature or political, those opposed to them in the Senate oppose them because of the political results of their judicial viewpoints.
6.10.2008 12:48pm
cboldt (mail):
The contention is entirely within the Senate, and more particularly, with the ability of a minority of senators to prevent the Senate from rendering a conclusive result.
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The Senate is completely dysfunctional when it comes to handling nominations, and I for one hope the Republicans engage in unrepentant tit for tat -- errr, working within the rules, I guess, since that's what the Democrats call exactly the same conduct.
6.10.2008 1:17pm
Paul Milligan (mail):
Ain't statistics wunnaful ?
6.10.2008 2:20pm
Parenthetical:

The Senate is completely dysfunctional when it comes to handling nominations, and I for one hope the Republicans engage in unrepentant tit for tat -- errr, working within the rules, I guess, since that's what the Democrats call exactly the same conduct.

While there's been significant static in the Senate for decades, a rather dramatic upsurge began during Clinton's administration (with Republicans in control of the Senate for much of that time). That "surge" roughly doubled the frequency of returned nominations (compared with the two prior Republican administrations faced with Democratic Senates).

The process is dysfunctional, but I can't credit the idea that either party can credibly claim the high ground. Unless of course the behavior is offensive only when you dislike the outcome? {YUCK}
6.10.2008 4:19pm
cboldt (mail):
-- I can't credit the idea that either party can credibly claim the high ground. --
.

There is no "high ground" in politics. I've opined that applying a 60 vote threshold to nominations is not in accord with the constitution. But Democrats (and some Republicans) claim otherwise, and assert 1) that 60 votes is appropriate, and 2) that the Senate has a pre-nomination role is selecting nominees (i.e., the president should consult with the Senate first, and not nominate someone until and unless the Senate pre-confirms the selection).

.

I think those rules are incorrect, but I sure hope the Republicans USE (and insist on adherence to) the damn incorrect rules as well as the Democrats have. The Democrats picked the rules, and now they will abide by them. Will they complain? Yes. Who cares?

.

Frist himself used inaction sans explanation to great advantage, having a number of nominees out of Committee (for months) and never subjected to a vote, all the while touting what a great job the GOP was doing in moving nominations along, and that all nominees deserve an up or down vote. Actions speak louder than words.
6.10.2008 4:33pm
taney71:

Bush shows how nominatinosh should be done: Do not consult with Congress, and when they don't act, keep renominating till they do.

It's kind of like how if you have a square peg, you shouldn't look at the hole, you just whack away with your hammer till your problem is solved, one way or another

Deliberation and consensus between two branches about the third is unseemly. What was Clinton thinking, talking to Orin Hatch? I doubt the founders envisiones cooperation like that.


Not sure where you have been but Bush has done a pretty good job of consulting with Congress. The number of minority part agreements his administration has with Democratic senators is much more than the Clinton administration had with Republicans. I guess if you have a preconceived point of view you have to stick with it.
6.10.2008 5:03pm