Bench Memos

Judicial Nomination “Stalemate”

The Legal Times reports on the emerging “stalemate” between President Bush and Senate Democrats over judicial nominations.

With just about 10 months left in his term, President George W. Bush is on track to leave office with fewer of his picks on the federal bench than his fellow two-term presidents Bill Clinton and Ronald Reagan.

Since 2001, Bush has had 294 district and appellate judges confirmed, but the prospect of getting many more through a Senate controlled by Democrats before Jan. 20, 2009, are slim.

By comparison, Clinton and Reagan, both of whom faced similar congressional opposition in the twilight of their administrations, each left office with more than 370 of their candidates confirmed, according to Senate statistics. And Bush is running only marginally ahead of Jimmy Carter, who left office after a single term with 262 nominees confirmed.

Bush has 187 judicial and executive nominations pending in the Senate. There are 28 pending judicial nominations — 18 for federal trial slots and 10 for appellate court seats — but none have been voted out of the Senate Judiciary Committee.

Meanwhile, President Bush has nominated Virginia Supreme Court Justice G. Steven Agee to the U.S. Court of Appeals for the Fourth Circuit. According to the AP, Agee has the support of both Virginia Senators, thus eliminating one potential excuse Senator Leahy could have for failing to move on his nomination. That said, I still do not expect Agee (or many of the other ten pending appellate nominees) to get confirmed before January 2009.

Jonathan H. Adler — Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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