U.S. Circuit and District Court Nominations: Senate Rejections and Committee Votes Other Than to Report Favorably, 1939-2013
Released: 2014-05-29T00:00:00

Introduction

Although judicial nominations sometimes do not receive Senate confirmation, they historically have been heavily outnumbered by judicial nominations which the Senate has confirmed. For example, according to the most recent CRS data, of the 2,927 nominees to Article III circuit and district court judgeships between the start of the 79 th Congress in 1945 and the end of the first session of the 113 th Congress on January 3, 2014, only 287 nominees (or approximately 10% of the total number of nominees in this period) failed to be confirmed by the Senate. Even smaller has been the number of lower court nominations which received unfavorable votes by the Senate Judiciary Committee or rejection votes by the full Senate.

More often than not, when a circuit or district court nominee lacks key Senate support (such as the support of one or both home state Senators), the Judiciary Committee simply has declined to consider or act on the nomination. Neither the Judiciary Committee nor the full Senate is compelled to act on nominations which come before it, and nominations that receive no action are eventually returned to, or withdrawn by, the President. The vast majority of unconfirmed nominees from 1945 through 2013—approximately 90%—failed to receive a committee vote in the Senate Judiciary Committee.

The procedural route for a circuit or district court nomination is as follows: Once the President has submitted such a nomination to the Senate, it is almost invariably referred to the Judiciary Committee. The committee may then hold a hearing on the nomination. After the hearing, the committee has several options: (1) it may report the nomination to the Senate favorably, unfavorably, or without recommendation; (2) it may vote against reporting the nomination; or (3) it may choose to take no action at all. Typically, if the committee votes on a nomination, it votes to report favorably; however, in a very small number of cases, the committee has voted against reporting a nomination, or has voted to report the nomination either unfavorably or without recommendation. If a majority of the committee agrees to any one of the motions to report, the nomination moves to the full Senate. Note that, in the event of a tie vote, the nomination fails to be reported by the committee. Additionally, the nomination remains in committee if the committee votes against reporting, if there is no committee vote on the nomination, or if the committee votes to table the nomination.

Once a lower court nomination is reported to the full Senate by the Judiciary Committee, the nomination is listed on the Senate's Executive Calendar, with Senate consideration of the nomination scheduled by the majority leader. If the Senate, when voting on whether to confirm, rejects the nomination (as has happened on rare occasions), it is returned to the President with a resolution of disapproval. If a judicial nomination does not receive a Senate vote, the nomination ultimately will either be withdrawn by the President or returned to the President by the Secretary of the Senate upon a Senate adjournment or recess of more than 30 days.

This report identifies, from the 76 th Congress (1939-1941) through the first session of the 113 th Congress (January 3, 2014), 19 U.S. circuit court or district court nominations that received other than a favorable vote from the Senate, the Senate Judiciary Committee, or both. Among these 19 nominations were 18 (or all but one of the nominations) on which the Judiciary Committee voted other than to report favorably. The only nomination that did not receive a vote other than to report favorably was that of Ronnie L. White to the District Court for the Eastern District of Missouri. The White nomination, as Table 2 shows, was reported favorably by the Judiciary Committee, only to be rejected by the full Senate.

Table 1 , below, summarizes the final committee and floor dispositions of these 19 nominations. Each row indicates a possible committee outcome ( report favorably, report without recommendation, report unfavorably , and fail to report ), and each column indicates a possible floor outcome ( confirmed, rejected, returned, and withdrawn ). Each cell provides the total number of circuit and district court nominations receiving the final committee and floor actions as indicated by the corresponding row and column. Totals for final committee and floor dispositions are found in the last column and row, respectively.

Table 2 lists the nominations to the circuit courts of appeals (7 in all) and district courts (12 in all) in separate sections. Within the two sections, nominations are arranged chronologically. From left to right, columns one, two, and three identify the Congress, nominee, and court of each nominee. Columns four through seven provide the Judiciary Committee vote on each nomination, stating the type of vote, vote breakdown, and date on which the vote occurred. Column eight provides information concerning the final disposition of the nomination in the Senate.

Beyond the scope of this report are U.S. circuit and district court nominations which were reported out of the Judiciary Committee and on which the Senate failed to invoke cloture. For the purposes of this report, such nominations are not considered up-or-down Senate votes to reject a nomination.

Nominations Receiving Unfavorable Senate or Committee Votes: Empirical Summary

Table 1 indicates that all seven circuit court nominations accounted for in the table received a committee vote other than to report favorably. Of the seven nominations, the Senate Judiciary Committee failed to adopt motions to report five, resulting in the return of four nominations to the President and the withdrawal of one. The remaining two nominations were reported without recommendation; one was confirmed and one was returned to the President. During the 1939-2013 period, no circuit court nominations were rejected by a vote of the full Senate.

Additionally, Table 1 indicates that, of the 12 district court nominations accounted for in the table, four were never reported out of the Judiciary Committee; one of the four nominations was returned, and three were withdrawn by the President.

Two district court nominations were reported to the Senate favorably. One, who was confirmed, had initially failed in a Judiciary Committee vote to have his nomination reported (only to have the committee decide, in a later vote, to report the nomination). The other, although reported favorably by the Judiciary Committee, was rejected by the full Senate. Five district court nominations were reported to the Senate unfavorably (all five were rejected by the Senate).

One nomination to a district court, which is the most recent listed in Table 2 , was reported to the Senate without recommendation; that nomination was confirmed by the Senate. Note that, as of this writing, this is the only nomination listed in Table 2 in which a vote on a motion to report unfavorably or without recommendation was not first preceded by a vote to report favorably.

Chronological Discussion of Nominations Receiving Unfavorable Votes

1939-1951

Table 2 reveals that, from 1939 through 1951, one circuit and six district court nominees received votes from the Senate Judiciary Committee other than to report favorably. In all but one of these seven cases, the committee declined to report favorably after home state Senators, in opposing the nominations, invoked "senatorial courtesy." Floyd H. Roberts, nominated to be U.S. district court judge for the Western District of Virginia, was the first judicial nominee reported unfavorably by the committee and rejected by the Senate within the 1939-2013 time period. The committee adversely reported Roberts in 1939 on the grounds that his nomination was "personally offensive" to the two Virginia Senators. The Senate, in turn, rejected the Roberts nomination by a 9-72 vote. In another case, in 1943, the Judiciary Committee failed, in a 9-9 tie vote, to report the Fifth Circuit Court nomination of James V. Allred, a former Texas governor, after Texas's junior Senator invoked senatorial courtesy. In doing so, the Senator reportedly notified the committee that "this nomination is obnoxious to me."

Additionally, in 1950 and 1951, four district court nominations faced opposition from home state Senators invoking senatorial courtesy. The opposing Senators stated that that the nominations to district judgeships in their states were "personally obnoxious" due to the manner in which they were handled by the Truman Administration. The Senators, in each case, had submitted the names of their preferred judicial nominees to the Administration. The President, however, without consulting with the home state Senators, proceeded to submit the names of other nominees—not of the Senators' choosing—to the Senate for consideration. One of the Senators, in objecting to the two judicial nominations in his state, noted it was not the nominees themselves but rather "the manner and method of their selection that made them personally obnoxious." All four nominations were reported adversely and rejected by voice vote in the Senate.

1952-1977

From 1952 through 1977, as Table 2 shows, there were no instances in which the Senate Judiciary Committee voted against reporting a circuit or district court nomination or voted to report such a nomination without recommendation or unfavorably. In 1976, however, one nomination, that of William B. Poff, to the U.S. District Court for the Western District of Virginia, was laid on the table by a 9-0 vote of the Senate Judiciary Committee reportedly due to senatorial courtesy.

1978-2013

Since 1978, six circuit and five district court nominees have received votes from the Senate Judiciary Committee other than to report favorably. Two of these nominees (one circuit and one district) were ultimately reported without recommendation and confirmed by the Senate in relatively close roll call votes.

One district court nominee was ultimately confirmed by a voice vote after his nomination was reported favorably out of the Senate Judiciary Committee. The successful motion to report favorably occurred, though, after a prior motion to report the nomination favorably failed to gain committee approval.

One circuit and two district court nominations were ultimately withdrawn by the nominating President.

The four remaining circuit court nominations were returned to the President. The Senate Judiciary Committee failed to report all but one of these nominees to the full Senate. One nominee subsequently received a recess appointment while another was renominated and confirmed by the Senate during a later Congress.

Finally, during the 106 th Congress, one district court nomination, that of Ronnie L. White to the Eastern District of Missouri, was reported favorably by the Judiciary Committee but rejected on the floor of the Senate by a 45-54 vote.

Senators' objections to these 11 nominations since 1978 rested largely on the perceived ideological orientation of judicial nominees, the professional qualifications of the nominees, or both. For example, Daniel Manion, nominated in 1986 by President Reagan to the Seventh Circuit Court of Appeals, was criticized for lacking "the record of distinction and achievement that was expected of appointees to the courts of appeals," while his supporters "argued that opposition to his nomination was based on his conservative views and his activities with his father," who had co-founded the John Birch Society.

Likewise, in 2002, objections to President George W. Bush's nomination of Priscilla R. Owen to the Fifth Circuit Court of Appeals appeared primarily concerned with her ideological orientation. In Senate Judiciary Committee debate preceding a vote on her nomination, Democratic members of the committee, it was reported, characterized the nominee "as a judicial 'activist' whose opinions were colored by strong anti-abortion and pro-business views, while Republicans defended her as a fair-minded jurist who was given a top rating by the American Bar Association but ran afoul of liberal interest groups." While Owen's two nominations during the 107 th Congress were returned to the President, she was renominated during the next two Congresses (the 108 th and 109 th ), and ultimately was confirmed by the Senate on May 25, 2005.

The most recent nomination listed in Table 2 , that of J. Leon Holmes to the U.S. District Court for the Eastern District of Arkansas, was also opposed by some Senators on ideological grounds. Mr. Holmes had been nominated by President G.W. Bush and had the support of both of Arkansas's Democratic Senators. Concern by opponents of the nomination cited the nominee's past "comments about abortion, women's rights and other topics," while those who supported his nomination emphasized that his comments were made "20-plus years ago" and that regardless of his personal views, the nominee would "abide by the rule of law." Mr. Holmes's nomination was ultimately confirmed by the Senate on July 6, 2004, by a vote of 51-46.

Nominations Receiving Unfavorable Votes During Periods of Unified or Divided Government

Unlike the nominations listed in Table 2 that were considered between 1939 and 1951 (all of which occurred during periods of unified party government), consideration of nominations listed in Table 2 from 1976 through 2013 occurred primarily during periods of divided government. This was the case for 9 of 12 of the nominations during this period that received other than favorable votes by the Judiciary Committee or the full Senate. In particular, all six circuit court nominees in question were nominated by a Republican President (three by Reagan, one by George H.W. Bush, and two by George W. Bush) while Democrats held a majority in the Senate.

Of the six district court nominations during this period receiving other than favorable votes in the Judiciary Committee or the full Senate, three (one Ford nominee, one Reagan nominee, and one Clinton nominee) received such votes during periods of divided government.

Note, however, that of the 3 nominations (1 circuit and 2 district) that were confirmed during the 1976 to 2013 period (i.e., the Manion, Collins, and Holmes nominations), all were approved by the Senate during periods of unified government. In other words, in each of those three cases, the same party controlled the presidency as well as held the majority in the Senate.