Bench Memos

NRO’s home for judicial news and analysis.

Status Report on Obama’s Judicial Confirmations


During 2011, the Senate confirmed 62 of President Obama’s judicial nominees—nine for appellate seats and 53 for district courts. That takes Obama’s three-year total to 124—two Supreme Court justices, 25 appellate judges, and 97 district judges.

Obama’s numbers might reasonably be compared to (1) President George W. Bush’s first three years, and (2) the first three years of Bush’s second term, which, like Obama’s three years, included two time-consuming Supreme Court confirmations.

To begin with the latter first: Obama’s total of 124 is substantially above Bush’s second-term three-year total of only 93—two Supreme Court justices, 22 appellate judges, and 69 district judges. Obama’s advantage here is all the more striking as he was starting afresh in 2009, whereas Bush in 2005 already had the nominations process in midstream.

As for the former comparison: Obama’s aggregate total of 124 is substantially below Bush’s first-term three-year total of 168. The difference of 44 is almost entirely attributable to district-court seats—Bush appointed 138 district judges in that three-year period, 41 more than Obama. And much of the difference on district judges reflects the fact that Obama has been much slower to nominate: Obama made 29 fewer district-court nominations in three years than Bush did. (As of now, Obama has only 45 nominees for 100 vacancies, both district-court and appellate.*)

A few other comparisons of note for those first-term periods:

– According to data that the Brookings Institution’s Russell Wheeler provided me by e-mail, Obama’s confirmation rate for appellate nominees was 81%, markedly higher than Bush’s 66%. (These numbers from Wheeler exclude nominations made after July of the third year, in order to build in a reasonable lag time for confirmation.)

– Conversely, for district judges (again, according to Wheeler’s data), Obama’s 82% confirmation rate was markedly below Bush’s 95%.

– In 2003, Senate Democrats defeated 19 cloture petitions on nine of Bush’s appellate nominees. In total, there were more than 800 Democratic votes against cloture. In 2011, Senate Republicans defeated two cloture petitions, one (with Democrat Ben Nelson joining them) on the nomination of Goodwin Liu, one on the nomination of Caitlin Halligan. The total number of Republican votes against cloture was 87. (No cloture petitions were defeated in 2001-2002 or 2009-2010.)

* The initial version of this sentence stated that Obama has only 37 nominees “pending.” My thanks to the reader who kindly pointed out to me that eight of Obama’s most controversial nominations were recently returned by the Senate. I’ll also highlight that the total of 100 vacancies includes 19 so-called “future vacancies”—instances in which sitting judges have stated their intention to retire as of a date certain (often the date on which they will become pension-eligible). Nominations can be (and in at least two pending instances have been) made for those “future vacancies.” A finer judgment whether Obama has been slow in making a nomination for a particular future vacancy would turn in part on how long the White House has known of the vacancy (information that I don’t have at my fingertips). 


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