President Bush made five court-of-appeals nominees in late June— Peter Keisler to the D.C. Circuit, Debra Livingston to the Second Circuit, Kent Jordan to the Third Circuit, and Raymond Kethledge and Stephen Murphy to the Sixth Circuit. I’ve heard some dispirited talk that the Senate won’t be able to confirm those nominees in this session. But there’s no justification for such defeatism.
A search of the Federal Judicial Center’s Biographical Directory of Federal Judges shows that President Clinton nominated five court-of-appeals judges between late June 1994 and late August 1994. (The last of these nominations was August 25, 1994.) The Senate, then controlled by Democrats, confirmed all five by early October 1994. A Republican-controlled Senate should strive (and work overtime, if necessary) to achieve the same result for President Bush’s nominees.
Another point of comparison: In the fifth and sixth years of Clinton’s presidency, a Republican-controlled Senate confirmed 20 of Clinton’s court-of-appeals nominees. So far, in the fifth and sixth years of George W. Bush’s presidency, a Republican-controlled Senate has confirmed 11 of Bush’s courts-of-appeals nominees.
It is, of course, true that the Senate (or at least the Senate Judiciary Committee) was busy with the Roberts and Alito nominations. But the Democrat-controlled Senate in 1993 and 1994, in addition to confirming two Supreme Court justices, confirmed 19 of Clinton’s court-of-appeals nominees.
A significant difference, of course, is that Senate Republicans have encountered unprecedented Democratic obstructionism. But it’s up to Senate Republicans to continue to work hard to overcome that obstructionism.