Judicial Nomination Stall:
The Senate has confirmed President Bush's appellate judicial nominees at an amazingly slow rate. Despite pledges to confirm three additional nominees before Memorial Day, the Senate has only confirmed two nominees all year, while numerous well-qualified nominees sit and wait. By comparison, a Republican Senate confirmed eight of President Clinton's appellate nominees during his last year in office. Since January 2007, the Senate has confirmed eight appellate nominees, whereas a Republican Senate confirmed fifteen during President Clinton's last two year.
It's certainly possible that the Senate rush several nominees through over the summer, but even with such an effort, this Congress will stand out for its snail-like pace. So it should be no surprise that Republicans are upset. Senator Mitch McConnell, in particular, has had enough.
At the beginning of this Congress, the Majority said it would meet or exceed the average of 17 circuit court nominees that have been confirmed in prior Congresses; yet it has only confirmed eight circuit court judges thus far. More disturbing, the Chairman of the Committee recently threatened to shut down the confirmation process completely, an action that would break yet another historical precedent.
The Majority said it would treat Republican senate delegations fairly; yet for months, the Democratic Majority has only worked on circuit court nominees from states with a Democratic senator.
The Majority said it would do its ‘utmost,’ said it would do ‘everything’ possible, said it would do ‘everything within its power’ to confirm three more circuit court nominees by the Memorial Day recess; yet it only confirmed one nominee. Moreover, it appears the Majority did not seriously attempt to honor its commitment. Indeed, since that deadline passed almost two weeks ago, the Democratic Majority has still failed to confirm more circuit court nominees.
The Democratic Majority has refused to honor its commitments. It apparently believes that commitments do not matter in the United States Senate, and that actions do not have consequences.
Certainly one reason for Senate Democrats to stall on President Bush's nominees is their hope to leave seats open that could be filled by a President Obama. Even so, I find the level of intransigence a bit surprising. Among other things, the unprecedented slowdown gift wraps an issue for Senator McCain. McCain needs help motivating the conservative base, and there are few issues that resonate among such groups like judicial nominations. All it would take to disarm the issue would be to confirm a handful of high-profile, exceedingly qualified nominees, such as Peter Keisler, who have widespread support.
As longtime readers know, I also worry that the unprecedented intransigence risks further exacerbation of political conflict over judicial nominations. While I do not expect Republican Senators to filibuster or otherwise obstruct a President Obama's nominees — and I will not support such efforts — such tactics appear increasingly likely. This is unfortunate. What we need at this point is not more nominations conflict, but a gradual de-politicization of the nomination process so that Presidents of either party can select the most qualified nominees who share their jurisprudential vision. I believe the Senate should have rapidly confirmed President Bush's nominees, and I hope (even if in vain) that the Senate will do the same for President Obama or McCain.
UPDATE: I won't rehash it all here, but I've posted extensively on the history of judicial nomination fights before. I summarized these posts (and provided links) in this post: "Judicial Nomination Fights -- Past and Present."
Fourth Circuit "Logjam":
The June ABA Journal cover story focuses on the confirmation "logjam" that has left four vacancies on the U.S. Court of Appeals for the Fourth Circuit -- three of which are classified as "judicial emergencies" and one of which has been open for almost 15 years. (There were five vacancies when the article went to press, but Steven Agee was recently confirmed --the first confirmation to the Fourth Circuit since 2003.) Given there are 15 seats on the Fourth Circuit, the court is operating at less than 75 percent strength.
As the article makes clear, Senators from both parties have contributed to the obstruction of fourth Circuit nominees for some time. Senator Jesse Helms, in particular, kept one North Carolina seat open for over six years during the Clinton Administration because Senate Democrats had refused to confirm his protege Terrence Boyle to the court when nominated by the first President Bush. Senator John Edwards returned the favor when President Bush was elected, blocking Boyle's confirmation as payback. And since then things have only gotten worse. The political fights over judicial nominations have steadily escalated over the past twenty years, and there is no sign it will let up soon.
The reason the nomination logjam has lasted this long is that judicial retirements have turned what was once the nation’s most reliably conservative appellate court into one split evenly—between judges appointed by Democratic presidents and those appointed by Republicans.
With the circuit’s ideological direction hanging in the balance, there’s been near-paralysis in Washington. The president has nominated reliably conservative lawyers to fill most of the vacancies, and the Democrat-controlled Senate has failed to act on most of the nominations. Meanwhile, the work of the circuit grinds on, with fewer and fewer judges to shoulder the burden.
Since Democratic Party leaders are feeling confident about their prospects for retaking the White House this fall, chances that any nominees beyond Agee will be confirmed before Bush leaves office in January range from slim to none, most experts say. And if the next president is a Democrat, his or her nominees could remake the 4th Circuit into a more moderate appeals court for a generation or more.
The article also reports that the Fourth Circuit has managed to operate short-handed quite well, at least thus far.
Despite the judicial shortage, the 4th circuit continues to dispose of cases quicker than almost any other circuit. But it does so while granting oral argument in fewer cases than its counterparts, and by issuing fewer substantive opinions explaining its decisions.
In 2006, the 4th had an average disposition time per appeal of 91⁄2 months, which tied the 11th Circuit as the quickest in the nation. The 9th Circuit had the slowest, at nearly 16 months. The national average was slightly longer than 12 months.
Judges in the 4th Circuit also consistently rank as among the hardest-working in the federal appeals courts. In fiscal year 2006, 679 appeals per active judge were terminated on the merits. Only the Atlanta-based 11th Circuit, with 877, and the New Orleans-based 5th Circuit, with 836, ranked higher. The D.C. Circuit had the fewest, at 173. The national average was 539.
But the 4th Circuit granted oral argument in less than 12 percent of its cases in 2006, far and away the smallest percentage of any circuit in the country. The average for all circuits was nearly 26 percent. That same year, the circuit also issued the lowest percentage of published opinions, at just over 6 percent. The average for all circuits was just under 16 percent.
Chief Judge Karen J. Williams, a 1992 appointee of the first President Bush, says the court is making the best of a bad situation.
The circuit has been able to stay current with its workload so far without suffering any loss in quality—in part by relying on its senior judges, and by inviting trial judges in the 4th Circuit and senior judges from other circuits to sit by designation, she says.
But she also says it won’t be able to do so indefinitely. “While we can continue to get our work done in a timely manner for the near future, over time the vacancies on our court, if not filled, may begin to have an adverse effect,” she says.
Judicial Confirmations By the Numbers:
A commenter to an earlier post wondered whether the relatively low rate of Senate confirmation of Bush appellate nominations in the past two years can be explained, in part, because Bush nominees were confirmed more rapidly (in comparison to prior administrations) earlier in his term. The short answer is "no."
For comprehensive statistics on judicial confirmations from 1977 through February 2004, one can consult this CRS report. For judicial confirmations since then, one can look at the website of the Office of Legal Policy, which has data on confirmations during the 108th and 109th Congresses. For the current Congress, one can consult the data maintained by the Administrative Office of the U.S. Courts here.
Consulting these sources, here is what one finds. President Carter had 56 appellate nominees confirmed. President Reagan had 83 appellate nominees confirmed over two terms (for an average of 41.5/term). President Bush (41) had 42 confirmed. President Clinton had 65 confirmed (an average of 32.5 term). President Bush (43) had 35 confirmed during his first term, and has had 24 confirmed since, for a total of 59. This data shows a clear, and fairly consistent, downward trend over the past thirty years.
One also sees a downward trend in the confirmation percentage of appellate appointees. These figures from the CRS reports are as follows: Carter - 91.8%; Reagan - 81.4%; Bush(41) - 77.8%; Clinton: 56.5%.
The confirmation percentage for President Bush's first term through 12/9/2003 was a measly 32.3%. Since then, it has improved. By my calculation, the confirmation rate for appellate nominees during Bush's first term was a respectable 67% and it has been 56% thus far in his second term, for an overall average of 62%. One factor that aided this percentage was the "Gang of 14" deal, that set aside the filibuster of several Bush nominees. The other was the slow rate at which the Bush Administration has made appellate appointments. In any event, it is worth noting that while President Bush has seen fewer appellate nominees confirmed to the bench than his predecessors, the percentage of his appellate nominees confirmed is slightly higher than that of President Clinton.
For my part, I would like to see more of President Bush's nominees confirmed, particularly Peter Keisler (D.C. Circuit), Robert Conrad (4th Circuit), and Rod Rosenstein (4th Circuit), all of whom are extremely well-qualified nominees deserving of confirmation (and two of whom are actively supported by the Washington Post, which has also called for quick action on Conrad). I would also like to see an end to the downward trend in appellate judicial confirmations and needless obstruction by either party, and I hope that the next occupant of the Oval Office -- whether Obama or McCain -- sees any and all qualified appellate nominees considered and confirmed without undue delay.
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.