Barry J. McMillion
Analyst on the Federal Judiciary
In recent years, a recurring subject of debate in the Senate has been the length of time taken for lower court nominations to receive Senate confirmation. During the 111th and 112th Congresses, this debate has focused, in part, on President Obama’s uncontroversial nominees to U.S. circuit and district court judgeships—and on whether, or to what extent, such nominees have waited longer to receive Senate confirmation than the uncontroversial judicial nominees of other recent Presidents.
To more fully inform this debate, the following report provides a statistical overview, from Presidents Reagan to Obama, of the waiting times from nomination to confirmation of uncontroversial U.S. circuit and district court nominees approved by the Senate from 1981 to September 14, 2012. For the purposes of this report, an uncontroversial judicial nominee is a nominee (1) whose nomination was reported by the Senate Judiciary Committee by voice vote or, if a roll call vote was held, the nomination was unanimously reported favorably by the committee to the full Senate, and (2) whose nomination was approved by voice vote when confirmed by the Senate or, if a roll call vote was held, received 5 or fewer nay votes.
Findings in the report include the following:
- Average and median waiting times to confirmation increased steadily with each presidency, from Ronald Reagan’s to Barack Obama’s, for uncontroversial circuit court nominees and almost as steadily for uncontroversial district court nominees.
Uncontroversial Circuit Court Nominees
- For uncontroversial circuit court nominees, the mean and median number of days from nomination to confirmation ranged from a low of 64.5 and 44.0 days, respectively, during the Reagan presidency to a high of 227.3 and 218.0 days, respectively, during the Obama presidency.
- The percentage of uncontroversial circuit court nominees waiting more than 200 days from first nomination to confirmation increased from 5.1% during the Reagan presidency to 63.6% during the Obama presidency.
Uncontroversial District Court Nominees
- For uncontroversial district court nominees, the mean and median number of days from nomination to confirmation ranged from a low of 69.9 and 41.0 days, respectively, during the Reagan presidency to a high of 204.8 and 208.0 days, respectively, during the Obama presidency.
- The percentage of uncontroversial district court nominees waiting more than 200 days from first nomination to confirmation increased from 6.6% during the Reagan presidency to 54.7% during the Obama presidency.
Various political and institutional factors in the Senate might help explain the increase, across presidencies, in the waiting times from nomination to confirmation experienced by uncontroversial U.S. circuit and district court nominees. These include ideological differences between the President and Senators, how quickly the Senate Judiciary Committee holds hearings on and reports a President’s nominees, how often holds are placed on nominations when they reach the Senate Executive Calendar, how readily unanimous consent agreements can be reached to bring nominees up for votes, and the role played by Senators not serving on the Judiciary Committee in vetting judicial nominees.
There are several possible implications for the longer waiting times from nomination to confirmation for uncontroversial U.S. circuit and district court nominees, including an increase in the number of judicial vacancies qualifying as “judicial emergencies,” the reluctance of wellqualified nominees with bipartisan support to undergo a lengthy confirmation process, an increase in partisan or ideological tensions in the Senate, enhanced Senate consideration of nominees who are nominated to positions with lifetime tenure, and a greater opportunity for interest groups and citizens to participate in the confirmation process.
Date of Report: September 18, 2012
Number of Pages: 21
Order Number: R42732
Price: $29.95
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