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The politicization of judicial nomination confirmations

Gerry at Daly Thoughts posted an analysis on the percentage of circuit court nominations confirmed by the Senate.

A reasonable interpretation on that chart is that, starting with Reagan, the process began to become politicized. The Democrats became even more aggressive at this during George H.W. Bush’s term. The Republicans then upped the ante a bit under Clinton, particularly with his late second-term nominations. And under George W. Bush, the Democrats have decided raise the ante yet again.

Gerry continues…

It is even more stark if one looks at just the numbers for a President’s first Congress:

I recommend that you read the entire post and the comments.

Hat tip: Dinocrat.

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Brent Logan

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2 responses to “The politicization of judicial nomination confirmations”

  1. jasper emmering Avatar
    jasper emmering

    If you combine the first graph on Clinton (61 percent over two terms) with the second (85 percent just for his first term), then you’ll notice that in Clinton’s second term, the Republicans blocked more Clinton nominations once they had the chance, with only 37 percent confirmations.

  2. Brent Logan Avatar
    Brent Logan

    Jasper, actually the math doesn’t quite work out that way for a couple of reasons:

    1. A congress is a two-year time period, so a two-term president would have four congresses to work with, not just two.
    2. One cannot calculate the overall confirmation percentage by averaging the individual congress’ confirmation percentages unless the number of judges nominated during each congress was the same. Clinton nominated different numbers of judges during each congress.

    Fortunately, Gerry provides a table as part of his analysis. I’ve copied the relevant portion for Clinton’s two terms here.

    Congress103rd104th105th106th103rd-106th
    Nominated22203034106
    Confirmed1911201565
    Withdrawn01113
    Returned3891838
    Rejected00000
    % Confirmed 86.4%55.0%66.7%44.1%61.3%
    Composition57D 43R52R 48D54R 45D55R 45D

    Although Clinton did have one congress that confirmed only 44.1% of his circuit court nominations, it was his last congress. His first congress confirmed substantially more. Let’s compare that with the congresses that Bush has faced.

    Congress107th108th107th-108th
    Nominated323567
    Confirmed171835
    Withdrawn011
    Returned151631
    Rejected000
    % Confirmed53.1%51.4%52.2%
    Composition50D 49R 1I51R 48D 1I

    Bottom line, is Bush the first president to endure low confirmation rates? No. Clinton faced similar, if not lower confirmation rates. For each term, though, Clinton received a honeymoon period of higher confirmation rates, even from the predominantly Republican 105th congress.

    More interesting, is Bush the first president to face the filibuster on judicial nominees? Again, the answer appears to be no. According to a congressional report issued in 2003:

    The first clear-cut example of the use of a filibuster against a nomination, including taking a cloture vote, occurred in 1968 over President Lyndon B. Johnson’s decision to elevate Associate Supreme Court Justice Abe Fortas to be Chief Justice. Senators spoke for several days on the motion to proceed to the nomination. The vote to invoke cloture on the motion to proceed failed, 45-43, on October 1, and, at Fortas’s request, President Johnson withdrew the nomination on October 4.

    Maybe the Republican’s chickens are coming home to roost…

    Update: I appear to be wrong in implying that the confirmation battles started in Clinton’s presidency. See my post, The politicization of judicial nomination confirmations, part 2