Shortening Agency and Judicial Vacancies through Filibuster Reform? an Examination of Confirmation Rates and Delays from 1981 to 2014

This Article explores the failure of nominations and the delay in confirmation of successful nominations across recent administrations, with a focus on the November 2013 change to the Senate voting rules. Using a new database of all nonroutine civilian nominations from January 1981 to December 2014, there are several key findings. First, approximately one-quarter of submitted nominations between 1981 and 2014 were not confirmed, with a higher failure rate for the last two Presidents. Nominations to courts of appeals and independent regulatory commissions had much higher failure rates than other entities. Second, for confirmed nominations, the time to confirmation has been increasing. President Obama’s nominees faced confirmation delays that were more than twice as long as President Reagan’s choices. Failure rates of nominations did not always go hand-in-hand with confirmation delays for successful nominations. Although more nominations failed in divided government, confirmation delays were roughly equal when different parties controlled the Senate and the White House. Third, comparing the year after the change to the filibuster rules to the preceding year, confirmation times for the courts decreased but increased for all types of agencies. For many agencies Copyright © 2015 Anne Joseph O’Connell. † Associate Dean for Faculty Development and Research and George Johnson Professor of Law, School of Law, University of California, Berkeley. I am indebted to Michael Lindsey and Dean Rowan of the Berkeley Law Library who “scraped” the official data for all submitted civilian nominations from 1981 through 2014 from congress.gov (the government declined to provide the formatted data) and placed it in usable form; they also helped me figure out various data issues and puzzles. The participants at the 45th Annual Duke Law Journal Administrative Law Symposium, especially Josh Chafetz, Bill Galston, and Paul Light, at the Berkeley Law Faculty Workshop, and at the University of San Diego Law School Faculty Workshop provided extremely helpful feedback and suggestions. I am also grateful to Judge Stephen F. Williams for his reactions. I wish I could have pursued more of the suggestions here, but they will have to wait for future projects. I greatly appreciate the extraordinary patience and careful editing by the Duke Law Journal. I am responsible for any errors. O'CONNELL IN PRINTER FINAL (DO NOT DELETE) 5/7/2015 6:15 PM 1646 DUKE LAW JOURNAL [Vol. 64:1645 and agency positions, however, significantly fewer nominations failed after the voting change. Even so, these improvements in 2014—to the confirmation rates for both agency and judicial nominees and to the confirmation pace for judicial picks—are relative: for the average nomination, the failure rate was higher and the confirmation process was slower than under preceding administrations. Fourth, nearly 30 percent of nominees hailed from the District of Columbia, Maryland, and Virginia, raising concerns that the confirmation process may be narrowing the pool of top officials. This Article suggests some possible explanations for the findings and further avenues of investigation, and also proposes some reforms.