Judicial Vacancies and the Confirmation Numbers:
I was fascinated by the stats my co-blogger Jonathan Adler posted on the numbers of appellate judges confirmed for each President over the last 30 years. Jonathan focuses on the difficulty of filling vacancies, but I think there is also an interesting story about the rates at which vacancies have become available.

  Judicial vacancies come available when a judge retires or resigns or when Congress creates more judgeships. I haven't looked into whether the rates of judicial retirement/resignation have changed, but I think that the authorization of new judgeships has had a major impact on the changing numbers of confirmations. In 1977, Congress had authorized only 97 federal appellate judgeships. That number went up to 132 in the Carter years, 168 in the Reagan years, and 179 in the Bush 41 years. Since Bush 41, however, Congress has not authorized any additional appellate judgeships.

  I would think that some of the explanation of the changing confirmation numbers is a reflection of Congress's decision not to add new judgeships since 1990. When Congress adds a bunch of judgeships, it is more likely to fill them; that boosts the numbers. Of course, the addition of more judges is partially a reflection of Congressional attitudes towards confirmation. If there is a strong contingent in the Senate that doesn't want to let judges through, that same contingent presumably will block legislation adding more judges. Still, decisions on the number of judges can reflect other concerns (such as the size of the docket). Given that, I think the vacancy side of the picture is worth keeping in mind.
Dave Hardy (mail) (www):
The folks at my old agency have commented that Congress has not authorized any expansions of personnel in a time, apparently meaning that the staff positions (political appointees remain a constant) are to be held constant until a new White House comes in to fill them. On the other hand, this may represent a benefit of divided government,

The other report is that vacancies are rarely filled. This is not formally ascribed to a hiring freeze due to lack of money -- it's just that filling an empty slot becomes impossible, no explanation given.
6.9.2008 1:59am
Rodger Lodger (mail):
Vacancy also when judge dies in office, e.g., Walter Cummings, 7th Cir. (1999).
6.9.2008 8:49am
The Constitution Project (CP) has maintained a report that's similar to the Congressional Research Service (CRS) report that Alder partially relied on. The most recent report (2006) covers Carter through the first Bush term (108th Congress). It comes closer to the kind of analysis you suggest here because it focuses on the duration of vacancies. Better still the raw data is available (ZIP file of spreadsheets and a codebook).

That said the CRS reports include some details not called out by CP. With the raw data in hand, however, you can retrofit some of CRS methodology and notes into the CP view of the situation.

6.9.2008 12:44pm
If you factor out the new appellate judgeships created under Carter, Reagan, and Bush (G.H.), you do find some clear trends from Cater through the G.W. Bush's first term.

Normalizing for the number of years involved, G.H.W. Bush saw a surprising number of judges who chose to leave the bench (or elevated to SCOTUS or died in office). Carter and the first G.W. Bush term saw about two dozen departures for these reasons, but the first Bush saw 40. Reagan (61 vacancies) and Clinton (67 vacancies) filled similar numbers of vacated seats.

Nominations spurred by what I'll call political reasons (withdrawn/returned nominations, unfilled vacancies from a prior administration and expired recess appts), show a real spike for Clinton and the first G.W. Bush term. Carter had only one withdrawal. Reagan and the G.H.W. Bush made one in five of their nominations for these political reasons. Clinton made about 40% and the first G.W. Bush term has nearly three quarters of its nominations for political reasons.
6.9.2008 4:09pm