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

Author: Brent Logan

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2 thoughts on “The politicization of judicial nomination confirmations”

  1. 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. 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.

    Congress 103rd 104th 105th 106th 103rd-106th
    Nominated 22 20 30 34 106
    Confirmed 19 11 20 15 65
    Withdrawn 0 1 1 1 3
    Returned 3 8 9 18 38
    Rejected 0 0 0 0 0
    % Confirmed 86.4% 55.0% 66.7% 44.1% 61.3%
    Composition 57D 43R 52R 48D 54R 45D 55R 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.

    Congress 107th 108th 107th-108th
    Nominated 32 35 67
    Confirmed 17 18 35
    Withdrawn 0 1 1
    Returned 15 16 31
    Rejected 0 0 0
    % Confirmed 53.1% 51.4% 52.2%
    Composition 50D 49R 1I 51R 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

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