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.