Barry J. McMillion
Analyst on the Federal Judiciary
The process by which lower federal court judges are nominated by the President and considered by the Senate is of continuing interest to Congress. Recent Senate debate over judicial nominations has frequently concerned whether a particular President’s judicial nominees, relative to the nominees of other recent Presidents, waited longer for their nominations to be considered by the Senate. This report addresses this issue by (1) providing a statistical analysis of the time from nomination to confirmation for U.S. circuit and district court nominees from Presidents Reagan to Obama; (2) identifying possible consequences of a protracted confirmation process for circuit and district court nominees; and (3) identifying policy options the Senate might consider to shorten the length of time from nomination to confirmation for lower federal court nominees.
In general, the mean (average) and median number of days from nomination to confirmation increased during each presidency since President Reagan. For circuit court nominees confirmed during a President’s time in office (whether one or two terms), the average number of days elapsed from nomination to confirmation ranged from 68.7 days during the Reagan presidency to 350.6 days during George W. Bush’s presidency. The median number of days from nomination to confirmation for circuit court nominees confirmed ranged from 45 days (Reagan) to 229 days (Obama).
For district court nominees, the average time between nomination and confirmation ranged from 67.9 days (Reagan) to 220.8 days (Obama). For district court nominees, the median time elapsed ranged from a low of 41 days (Reagan) to 215 days (Obama).
There are several potential consequences of a protracted confirmation process for lower federal court nominees. These include (1) consistently high vacancy rates for circuit and district court judgeships as well as a greater number of such vacancies considered “judicial emergencies” by the Judicial Conference of the United States; (2) detrimental effects on the management of the federal courts, including judicial caseloads; (3) greater difficulty in finding highly qualified individuals who are willing to be nominated to the federal bench; (4) the politicization of the confirmation process in a manner that might leave the public with the impression that the ideological or partisan predisposition of the nominee is the primary consideration in determining how the nominee will approach his or her work on the bench.
Three policy options discussed in the report include the following:
• Utilizing time frames for various stages of the confirmation process for U.S. circuit and district court nominees, including the length of time from nomination to committee hearing as well as the length of time from committee report to final Senate action.
• Expediting the confirmation process for judicial nominations using “fast-track” procedures. Such procedures might include classifying some judicial nominations as “privileged nominations” as is currently done to expedite Senate consideration of nominations to some positions in the executive branch.
• Treating district court nominations differently than circuit court nominations by changing certain features of the confirmation process for district court nominations. Such changes might result in shortening the time from nomination to confirmation for district court nominees.
Date of Report: November 20, 2013
Number of Pages: 20
Order Number: R43316
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