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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.

Bill Dyer (mail) (www):
I will be forever baffled and disappointed at the Bush-43 Administration's consistent tardiness in making nominations to fill vacancies. It is simply inexcusable.
6.7.2008 12:35pm
mga (mail):
Two years ago, Justice Scalia spoke at the local bar association's law day. He argued that when the courts undertake to decide fundamentally political questions, such as abortion or gay marriage, the politics will inevitably take over the selection process for judges. I think he's absolutely right. The Supreme Court now regards itself as the ultimate authority on everything, from important subjects such as the war on terror to trivial ones such as the meaning of golf. And that's why the percentage of appellate nominations is steadily trending down. That will stop when, if ever, the courts stop deciding political questions.
6.7.2008 12:43pm
GV:
Political questions, like the standards for counting votes in a presidential election, whether local governments can ban guns, whether state university's can use affirmative action? Oh, by "fundamentally political questions," Justice Scalia meant "questions that the court ends up with a liberal result." I see.

The Supreme Court has always been political in the sense that most cases that reach it are legally indeterminate. The "law" does not resolve the question, so judges have to consult non-legal norms to come to a conclusion. Given that judges must consult non-legal norms to resolve questions, I see no reason why judges should not be strictly scrutinized, whether liberal or conservative.
6.7.2008 12:47pm
Cornellian (mail):
Two years ago, Justice Scalia spoke at the local bar association's law day. He argued that when the courts undertake to decide fundamentally political questions, such as abortion or gay marriage, the politics will inevitably take over the selection process for judges.

See, e.g. Bush v. Gore.
6.7.2008 1:45pm
FedLawyer:
Hmm - so why doesn't the President consult with the Senate/Judiciary Committee before making his nominations? Yes, they'll force him to choose moderates and centrists, but would he rather get stonewalled, leave office, and get replaced by a Democratic President who fills those vacancies with liberal judges?

Is pushing unconfirmable judges really seen as so much better than facing limited criticism for "caving" to the left by fragments of a movement that's going downhill anyway, especially when he's not running for re-election and doesn't need their enthusiastic support?
6.7.2008 2:42pm
Anon21:
FedLawyer: Perhaps Bush believes can get some political mileage out of "obstructionist Senate Democrats" that could bolster him in the election. I agree with you on the political merits that Bush would be much better off putting in some moderate conservative judges now, rather than risking that Obama will populate the courts with authentic liberals with the assistance of an expanded Senate majority. It's also possible at this point that Senate Democrats recognize that reality, and would be unwilling even to take action on moderates at this point.
6.7.2008 2:55pm
frankcross (mail):
It's not really clear that this politicization is coming from congressional quarters. The Reagan Administration recognized the significance of circuit court judges and clearly ideologized their selection, this was a plan openly laid out by Meese. To the extent that presidential selections are politicized, one would naturally expect more resistance from the opposing party in Congress.
6.7.2008 3:38pm
AndrewK (mail):
Are judges retiring later? Politics may be a part of it, but are later life expectancy and fewer early retirements also part of the data?
6.7.2008 3:56pm
theobromophile (www):
Defending mga here....

Two years ago, Justice Scalia spoke at the local bar association's law day. He argued that when the courts undertake to decide fundamentally political questions, such as abortion or gay marriage, the politics will inevitably take over the selection process for judges.

mga was kind enough to provide us examples of "fundamentally political questions." I would venture to guess that a reasonable (albeit imperfect) definition of those questions are things that are ordinarily decided by a legislature - those questions which are not resolved by the Constitution, but are instead left to a co-equal branch of government. The practice of medicine, the prosecution of homicide, the rights associated with marriage, limits upon whom may marry, whether the death penalty may be sought for murder, and the role of parents in determining medical care for their children are all political, legislative questions. The Constitution gave us a distinct list of rights that cannot be abridged; state constitutions do the same. Beyond the enumerated list, there are rights that were fundamental to free society throughout the history of the United States that are also enshrined in the Constitution.

When the Court usurps the role of a legislative branch, its appointments are bound to be as political as those of elected officials. I'll also agree with AndrewK - the fact that judges and justices don't retire for years means that any judge will have enormous influence for the next generation or two.
6.7.2008 5:37pm
Public_Defender (mail):

Hmm - so why doesn't the President consult with the Senate/Judiciary Committee before making his nominations? Yes, they'll force him to choose moderates and centrists, but would he rather get stonewalled, leave office, and get replaced by a Democratic President who fills those vacancies with liberal judges?


That's how Clinton got as many judges through as he did. When he got a liberal on SCOTUS (Ginsberg), he picked someone significantly older than the conservatives Bush I picked. The other nomination, Breyer, is certainly no liberal when it comes to many criminal justice issues. In some ways, I'd rather have another Scalia than another Breyer.

Part of the problem is that the Republican base want to rally around right wingers. It seems that they'd rather have nothing than 3/4 of a loaf, so nothing is what they get.

I'm amazed by the criticism of the "Gang of 14." That agreement got a whole bunch of conservative judges on the court. The Republicans might or might not have been able to blow up the filibuster by dishonestly changing the rules, but even if they had, the Democrats could have tied the entire Senate in knots.

When "compromise" is a dirty word, you get only what you have the raw power to get. And the Republicans have a lot less raw power than some in their base imagine.
6.7.2008 6:16pm
New Yorker:
Of course "usurping the legislature," is quite a loaded, subjective phrase. But let's examine it for a moment. Does not Justice Scalia also usurp the legislature when he rails against the use of legislative history? Sure, a Congressional Committee's policy statement or debate record ought not be completely dispositive of a statute's meaning; but is it right to complain, e.g. that young congressional staffers insert things into the record and somehow claim that this therefore drains these statements of their legitimacy? After all, we seem to accept that law clerks draft and often write complete opinions for judges in lower courts. It seems to me that Justice Scalia's task is to interpret the law, not to attack a procedure Congress uses in drafting and finalizing legislation. When he ignores information that sheds light on what members of Congress thought when debating and voting on a piece of legislation, he also usurps the legislature.
6.7.2008 6:22pm
Oren:
When the Court usurps the role of a legislative branch, its appointments are bound to be as political as those of elected officials.
On the other hand, when legislatures and executives take actions outside their Constitutional authority (e.g. DC in DC v. Heller or the DOJ in OR. v. Gonzales), the political will that authorized those extra-Constitutional means will no doubt attempt to pressure the court to conform to their will.
6.7.2008 6:27pm
theobromophile (www):
New Yorker - in that case, Congress can state that those legislative proceedings are law, or that they have the force or law, or insert them in an appendix or footnote into the statute in question. Until that happens, they are not part of the law in question. You can play mind-reader and guess at what people meant, or you can read the words and understand that those words, not the intent, is what was voted on to be "the law."
6.7.2008 7:31pm
frankcross (mail):
A little circularity, theobromophile, which works against you. Congress could clearly state that legislative history is not law. Yet while courts continue to use legislative history, Congress has not done so and continues to create legislative history.
6.7.2008 7:45pm
Smith supporter (mail):
As honest, fair-minded, and thoughtful judges go, one could not ask for better than Judge William E. Smith, currently a U.S. District Judge for Rhode Island and nominated for the First Circuit. It will be a real shame if the Democrats do not give him a fair shake, as he is someone that might just as easily have been nominated by a centrist Democratic president.
6.7.2008 8:17pm
Snarky:

deserving of confirmation


I am curious. Exactly what does one do to "deserve" to be an appellate judge with a large amount of power of the lives of others?

If you want to know why Bush has not gotten as many nominations to the courts confirmed as his predecessars, all I have to say is that it is very much related to his conception of "bipartisanship" which is roughly equivalent to "partisanship."

Clinton famously cooperated with Orin Hatch in making nominations. Bush is famous for not cooperating with anyone.
6.7.2008 10:28pm
DerechoProf:
Jonathan, I find the downward trend to be a healthy sign that the Senate is taking seriously its job. In polities that have more sensible supermajoritarian appointment mechanisms, for example, different factions are forced to negotiate with each other. The president could readily have his appointees confirmed if he would negotiate with the Democrats. Given the lack of trust between the 2 factions, we should applaud outcomes that may force the two sides to negotiate. When it comes to the judiciary, the second best choice for each faction is the best outcome for society. Miguel
6.8.2008 8:47am
Dave N (mail):
Snarky,

I would note that the Ninth Circuit has exactly one vacancy--largely, I suspect, because President Bush has cooperated with Diane Feinstein. The appointment of Judge N. Randy Smith is a case in point. Judge Smith was nominated for a seat that Senator Feinstein thought "belonged" to California and he was re-nominated for a seat "belonging" to Idaho.

Overall, the confirmation of 9th Circuit judges stands in sharp contrast with other circuits.
6.8.2008 9:44pm
Just Dropping By (mail):
The Supreme Court now regards itself as the ultimate authority on everything, from important subjects such as the war on terror to trivial ones such as the meaning of golf.

The only reason the Supreme Court was in a position to hear the golf case was because Congress passed, and President G.H.W. Bush signed, the ADA, which gave the golfer a cause of action to go into court with. I'm really sick of people pissing and moaning about the Court hearing stupid cases which are the clear product of Congressional action.
6.9.2008 8:54am
one of many:
That's how Clinton got as many judges through as he did.
Not entirely true, of the 377 total federal judgeships Clinton got through congress, 149 (almost 40%) were in 1993&1994 with a Democratic controlled congress (101 in 1994 when he actually started sending nominees to the Senate). Indeed, Clinton appointed Ronnie White - so far from unobjectionable that the GOP members of the Judiciary Committee forced a floor vote on while Democrats on the Judiciary Committee voted not to give Clinton's nominee a floor vote to avoid the embarassment (he lost, the only nominee by the last 5 presidents to be rejected by the senate in a floor vote, as a historical first the first black judicial nominee to be rejected).
6.9.2008 12:36pm
New Yorker:

in that case, Congress can state that those legislative proceedings are law, or that they have the force or law, or insert them in an appendix or footnote into the statute in question. Until that happens, they are not part of the law in question. You can play mind-reader and guess at what people meant, or you can read the words and understand that those words, not the intent, is what was voted on to be "the law."


I think this comment above by theobromophile demonstrates some confusion about what exactly legislative history is, as well as the role of a judge. Looking at the procedural history of a bill in Congress, or statements in the record that shed light on the meaning of ambiguous words or phrases is far from determining that those components of legislative history are indeed "the law." The "law" is obviously the text itself. But let us not forget that, as laws are ideas set forth in language -- in this case the English one -- many of these ideas set forth in language are susceptible of different interpretations, despite a judge's conclusory statement that he only endeavors to find a word's "plain meaning". (See James Boyd White for more on this).
Interpretation is the quintessential role of a judge. This means looking beyond a lazy assessment about "plain meaning" and using every possible piece of data at hand in determing the meaning or scope of words used in a law.
6.9.2008 2:28pm