Final Senate Action on U.S. Circuit and District Court Nominations During a President’s Eighth Year in Office
Released: 2016-01-27T00:00:00

Introduction

The process by which lower federal court judges are nominated by the President and approved by the Senate during the final year of a presidency has, in recent decades, been of continuing interest to Congress. The eighth year of a presidency is significant, in part, because it is the final opportunity for a President to appoint individuals as U.S. circuit and district court judges. Such judges have what effectively has come to mean life tenure, holding office "during good Behaviour."

This report, in light of continued Senate interest in the judicial confirmation process, provides statistics related to final Senate action on U.S. circuit and district court nominations during the eighth year of the George W. Bush, Clinton, and Reagan presidencies. For the purposes of this report, a President's eighth year in office is defined as the period from January 1 of his eighth calendar year in office to when he leaves office on January 20 of his ninth calendar year in office.

Additionally, for the purposes of this report, final Senate action occurs either when the Senate confirms a nomination during a President's eighth year or when a nomination is returned to the President during his eighth year (and not resubmitted by the President and ultimately approved by the Senate).

The specific statistics and data discussed below include (1) the number and percentage of U.S. circuit and district court nominees confirmed or returned during the eighth year of each presidency; (2) the number and percentage of U.S. circuit and district court nominees confirmed during a President's eighth year who were nominated either during a President's eighth year or prior to his eighth year; (3) the number of U.S. circuit and district court nominees confirmed each month during a President's eighth year; and (4) the final date during each President's eighth year on which the Senate confirmed U.S. circuit and district court nominees.

The statistics provided in this report were generated from an internal CRS judicial nominations database. The statistics account only for nominations made to U.S. circuit and district court judgeships. This report does not analyze or take a position on the number or percentage of judicial nominations that would be appropriate for the Senate to approve during the final year of a presidency.

U.S. Circuit Courts

Final Disposition

The statistics reported in Table 1 show final Senate action (i.e., the final disposition) on all U.S. circuit court nominations that were pending before the Senate, either in committee or on the Executive Calendar , during a President's eighth year in office.

Of the three most recent Presidents with a full eighth year in office, the number of U.S. circuit court nominees confirmed during the eighth year ranged from a low of 4 (in 2008, during the George W. Bush presidency) to a high of 8 (in 2000, during the Clinton presidency).

The number of nominations not approved by the Senate and returned at the end of a President's eighth year in office ranged from a low of 9 (in 1988, during the Reagan presidency) to a high of 18 during the Clinton presidency.

Table 1 also shows, for each of the three presidencies, fewer than half of all circuit court nominations on which the Senate acted during a President's eighth year in office were confirmed by the Senate—specifically, 23.5%, 30.8%, and 43.7% were confirmed during the eighth year of the George W. Bush, Clinton, and Reagan presidencies, respectively.

Consequently, more than half of the circuit court nominations that were pending before the Senate during each President's final year in office were not confirmed by the Senate—76.5%, 69.2%, and 56.2% were returned during the eighth year of the George W. Bush, Clinton, and Reagan presidencies, respectively.

Final Disposition of New Nominations Made during Eighth Year

Another way to examine the data is to take into account only those nominations that were made for the first time during a President's eighth year in office. This approach omits nominations made prior to a President's eighth year in office (i.e., during a President's seventh year or earlier) that the Senate nonetheless approved or returned during a President's eighth year.

Each of the three Presidents had at least one circuit court nomination made for the first time during his eighth year in office that was also approved by the Senate during his eighth year.

Of the 17 circuit court nominations that received final Senate action during the final year of the George W. Bush presidency (as reported in Table 1 ), 6 were first submitted to the Senate in 2008, his final year in office. Of the 6, 2 (33.3%) were confirmed and 4 (66.7%) were returned (i.e., not confirmed).

Of the 26 circuit court nominations that received final Senate action during the final year of the Clinton presidency, 9 were first submitted to the Senate during his final year (2000). Of the 9, 1 (11.1%) was confirmed and 8 (88.9%) were returned.

Of the 16 circuit court nominations that received final Senate action during the final year of the Reagan presidency, 7 were first submitted to the Senate during his final year (1988). Of the 7, 2 (28.6%) were confirmed and 5 (71.4%) were returned.

Nominees Confirmed by the Senate: When First Nominated by the President

The statistics reported in Table 2 show, for circuit court nominees confirmed during a President's eighth year in office, the number and percentage first nominated at some point prior to the eighth year, as well as the number and percentage who were first nominated during the eighth year itself.

For Presidents Clinton and Reagan, more than half of the circuit court nominees confirmed by the Senate during each President's eighth year were first nominated prior to the eighth year—7 of 8 (87.5%) and 5 of 7 (71.4%), respectively. For President George W. Bush, half of the 4 nominees that were confirmed during his eighth year were first nominated prior to the eighth year, while the other half were nominated during the eighth year.

During a President's final year in office, the number and percentage of confirmed circuit court nominees who were first nominated prior to, or during, the eighth year might be influenced by factors such as how many circuit court nominees are "held over" from a President's seventh to eighth year in office. A President with relatively fewer circuit court nominations held over after his seventh year might have more (or a greater percentage of) nominees confirmed during his eighth year who were also nominated for the first time during his eighth year. While a President with relatively more circuit court nominations held over after his seventh year might have more (or a greater percentage of) nominees confirmed during his eighth year who were also nominated prior to his eighth year (since, presumably, the Senate might have less time to act on any new nominations made during a President's eighth year).

Nominees Confirmed by the Senate: Month of Senate Approval

There is variation across presidencies as to when the Senate approves circuit court nominations during a President's eighth year in office. For the three most recent Presidents with a full eighth year in office, Figure 1 shows the number of circuit court nominees confirmed each month during a President's eighth year.

As shown by the figure, there were no months in common during each President's eighth year in which the Senate confirmed at least one circuit court nominee. There were, however, four months in common in which two of the three Presidents had at least one circuit court nominee confirmed (February, March, April, May).

Additionally, during each President's eighth year in office, there was at least one month in which the Senate confirmed two or more of a President's circuit court nominees (June 2008 during the George W. Bush presidency; February 2000, March 2000, and May 2000 during the Clinton presidency; February 1988, April 1988, and October 1988 during the Reagan presidency).

For Presidents Clinton and Reagan, a majority of the circuit court nominees confirmed during each of their eighth years were approved during the first quarter of each President's final year in office (January through March). For President George W. Bush, a majority of the circuit court nominees confirmed during his eighth year were approved during the second quarter (April through June).

For the two most recent Presidents in the comparison group, George W. Bush and Clinton, there were no circuit court nominees approved by the Senate after June or July, respectively, of each President's eighth year in office.

Date of Final Confirmation(s)

Table 3 reports the final date during a President's eighth year in office on which the Senate approved one or more circuit court nominations, as well as other information about each nomination.

Two of the three Presidents (George W. Bush and Reagan) had more than one circuit court nominee approved, for the final time, by the Senate on the same date.

U.S. District Courts

Final Disposition

The statistics reported in Table 4 show final Senate action (i.e., the final disposition) on all U.S. district court nominations that were pending before the Senate, either in committee or on the Executive Calendar , during a President's eighth year in office.

Of the three most recent Presidents with a full eighth year in office, the number of U.S. district court nominees confirmed during the eighth year ranged from a low of 24 (in 2008, during the George W. Bush presidency) to a high of 33 (in 1988, during the Reagan presidency).

The number of nominations not approved by the Senate and returned at the end of a President's eighth year in office ranged from a low of 12 during the Reagan presidency to a high of 25 (in 2000, during the Clinton presidency).

In contrast to final Senate action on circuit court nominations, a majority of district court nominations that received final action during each President's eighth year in office were confirmed by the Senate (rather than returned).

Specifically, as shown by Table 4 , at least 50.0% of all district court nominations on which the Senate acted during a President's eighth year in office were confirmed—specifically, 54.5%, 55.4%, and 73.3% were confirmed during the eighth year of the George W. Bush, Clinton, and Reagan presidencies, respectively.

Consequently, fewer than half of the district court nominations that were pending before the Senate during each President's final year in office were not approved by the Senate—45.5%, 44.6%, and 26.7% were returned during the eighth year of the George W. Bush, Clinton, and Reagan presidencies, respectively.

Final Disposition of New Nominations Made During Eighth Year

Also in contrast to U.S. circuit court nominations, a majority of new district court nominations made for the first time during each President's eighth year were confirmed by the Senate.

Of the 44 district court nominations that received final Senate action during the final year of the George W. Bush presidency (as reported in Table 4 ), 26 were first submitted to the Senate in 2008, his final year in office. Of the 26, 15 (57.7%) were confirmed and 11 (42.3%) were returned (i.e., not confirmed).

Of the 56 district court nominations that received final Senate action during the final year of the Clinton presidency, 38 were first submitted to the Senate during his final year (2000). Of the 38, 24 (63.2%) were confirmed and 14 (36.8%) were returned.

Of the 45 district court nominations that received final Senate action during the final year of the Reagan presidency, 26 were first submitted to the Senate during his final year (1988). Of the 26, 19 (73.1%) were confirmed and 7 (26.9%) were returned.

Nominees Confirmed by the Senate: When First Nominated by the President

The statistics reported in Table 5 show, for district court nominees confirmed during a President's eighth year in office, the number and percentage first nominated at some point prior to the eighth year, as well as the number and percentage who were first nominated during the eighth year itself.

For each President in the comparison group, a majority of district court nominees confirmed during his eighth year in office were also nominated for the first time during the eighth year—specifically, 62.5%, 77.4%, and 57.6% were nominated for the first time (and confirmed) during the eighth year of the George W. Bush, Clinton, and Reagan presidencies, respectively.

Nominees Confirmed by the Senate: Month of Senate Approval

There is variation across presidencies as to when the Senate approves district court nominations during a President's eighth year in office. For the three most recent Presidents with a full eighth year in office, Figure 2 shows the number of district court nominees confirmed each month during a President's eighth year.

As shown by the figure (and in contrast to circuit court nominations), Senate confirmation of district court nominations extended, for all three presidencies, into the final three or four months of each presidency.

There was one month in common during each President's eighth year in which the Senate confirmed at least one district court nominee (i.e., July in the eighth year of each presidency). There were another five months in common in which two of the three Presidents had at least one district court nominee confirmed (February, April, May, June, and October).

Additionally, during each President's eighth year in office, there were at least two months in which the Senate confirmed more than five district court nominees each month (June 2008 and September 2008 during the George W. Bush presidency; May 2000 and June 2000 during the Clinton presidency; and February 1988, April 1988, October 1988 during the Reagan presidency).

For Presidents Clinton and Reagan, a majority of the district court nominees confirmed during each of their eighth years were approved during the second quarter of each President's final year in office (April through June). For President George W. Bush, a majority of the district court nominees confirmed during his eighth year were approved during the third quarter of his final year (July through September).

Date of Final Confirmation(s)

Table 6 reports the final date during a President's eighth year in office on which the Senate approved one or more district court nominations, as well as other information about each nomination.

Each of the three Presidents had multiple district court nominees approved, for the final time, by the Senate on the same date. Specifically, there were 10 district court nominees approved by the Senate for the final time, on September 26, 2008, during the George W. Bush presidency. There were 4 nominees approved for the final time, on October 3, 2000, during the Clinton presidency. And there were 8 nominees approved for the final time, on October 14, 1988, during the Reagan presidency.