Nominations to U.S. Circuit and District Courts by President Obama During the 111th and 112th Congresses
Released: 2012-06-01T00:00:00

Introduction

The process by which lower federal court judges are nominated by the President and confirmed by the Senate has, in recent decades, been of continuing interest to Congress. During Senate debates in the 112 th Congress over judicial nominations, differing perspectives have been expressed about the relative degree of success of a President's nominees in gaining Senate confirmation, compared with nominees of other recent Presidents. Senate debate often has concerned whether a President's judicial nominees, relative to the nominees of other recent Presidents, encountered more difficulty or had to wait longer, before receiving consideration by the Senate Judiciary Committee or up-or-down votes on confirmation. Of related concern to Congress have been increases in recent years in the number and percentage of vacant judgeships in the federal judiciary and the effect of delayed judicial appointments on judicial vacancy levels.

This report seeks to inform the current debate in three ways: first, by providing a statistical overview of President Obama's nominees thus far to U.S. circuit court of appeals and U.S. district court judgeships, and of any actions taken on their nominations by the Senate Judiciary Committee and the full Senate; second, by using various statistical measures to compare the success to date of President Barack Obama's judicial nominees in advancing through the Senate confirmation process with the success of the judicial nominees of the four most recent preceding Presidents (Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush); and third, by identifying various factors which might help explain differences or variations found in judicial appointment statistics across the five presidencies.

Most of the statistics presented and discussed below were generated from an internal CRS judicial nominations database. Other data sources, however, are noted where appropriate. The statistics account only for nominations made by Presidents Reagan through Obama to U.S. circuit court and U.S. district court judgeships established by Congress under Article III of the Constitution.

On March 12, 2012, an agreement was reached by Senate Majority Leader Harry Reid and Senate Republican Leader Mitch McConnell identifying 14 lower court nominations that would receive up-or-down Senate confirmation votes by May 7, 2012. The statistics provided in this report include Senate confirmation of the 14 nominees subject to the March 12, 2012, agreement between the two Senate leaders, the confirmation of two additional district court nominees on May 14, 2012, and the confirmation of Paul J. Watford to the Ninth Circuit Court of Appeals on May 21, 2012.

Article III Lower Courts

Article III, Section I of the Constitution provides, in part, that the "judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." It further provides that justices on the Supreme Court and judges on lower courts established by Congress under Article III have what effectively has come to mean life tenure, holding office "during good Behaviour." Along with the Supreme Court, the courts that constitute the Article III courts in the federal system are the U.S. circuit courts of appeals, the U.S. district courts, and the U.S. Court of International Trade.

As mentioned above, this report focuses on nominations made by President Obama and other recent Presidents to the U.S. circuit courts of appeals and the U.S. district courts. Outside the report's scope are the occasional nominations that these Presidents made to the nine-member Court of International Trade or to the territorial district courts.

U.S. Courts of Appeals

These courts take appeals from federal district court decisions and are also empowered to review the decisions of many administrative agencies. Cases presented to the courts of appeals are generally considered by judges sitting in three-member panels. Courts within the courts of appeals system are often called "circuit courts" (e.g., the First Circuit Court of Appeals is also referred to as the "First Circuit"), because they are divided into 12 geographic circuits and one additional nationwide circuit, the Federal Circuit, which has specialized subject matter jurisdiction. Altogether, 179 appellate court judgeships are currently authorized by law. The First Circuit (comprising Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico) has the fewest number of authorized appellate court judgeships (i.e., 6), while the Ninth Circuit (comprising Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) has the most, 29.

In this report, nominations to U.S. courts of appeals judgeships are frequently referred to as "circuit court nominations."

U.S. District Courts

These are the federal trial courts of general jurisdiction. Altogether, there are 91 Article III district courts: 89 in the 50 states, plus one in the District of Columbia, and one more in the Commonwealth of Puerto Rico. Each state has at least one U.S. district court, while some states (specifically California, New York, and Texas) have as many as four. Altogether, 673 Article III U.S. district court judgeships are currently authorized by law. Congress has authorized between 1 and 28 judgeships for each district court.

Judicial Nominations and Confirmations under President Obama

This section provides a statistical overview of President Obama's appointments to U.S. circuit courts of appeals and U.S. district courts from January 20, 2009, through May 31, 2012. It begins with a statistical summary of the current confirmation status of President Obama's circuit and district court nominees. It then examines the extent to which circuit and district judgeships in each of the nation's judicial circuits are filled by appointees of President Obama. It concludes by comparing the number and percentage of circuit and district court judgeships that were vacant at the start of the Obama presidency with current vacancy statistics.

Confirmation Status of President Obama's Judicial Nominees

Table 1 provides a statistical summary of the confirmation status of individuals nominated by President Obama to U.S. circuit and district courts between January 20, 2009, and May 31, 2012. Thus far, President Obama has nominated 41 persons to circuit court judgeships. Of the 41, 29 (70.7%) have been confirmed by the Senate, 6 (14.6%) have failed to be confirmed after their nominations either were withdrawn by the President or returned to the President and not resubmitted to the Senate, and 6 (14.6%) currently have nominations pending (2 in the Senate Judiciary Committee and 4 on the Senate Executive Calendar).

President Obama has nominated 150 individuals to U.S. district court judgeships. Of the 150, 117 (78.0%) have been confirmed by the Senate, 6 (4.0%) have failed to be confirmed after their nominations either were withdrawn by the President or returned to the President and not resubmitted to the Senate, and 27 (18.0%) currently have nominations pending (15 in the Senate Judiciary Committee and 12 on the Senate Executive Calendar).

In total, 146 (or 76.4%) of President Obama's circuit and district nominees were confirmed between January 20, 2009, and May 31, 2012.

Variation Across Geographic Circuits in Number and Percentage of Confirmed Nominees

Overall, President Obama's 29 confirmed circuit court nominees currently fill 16.2% of the nation's 179 authorized circuit court judgeships, while his 116 confirmed district court nominees currently fill 17.2% of the nation's 673 authorized Article III district court judgeships.

President Obama's confirmed judicial appointees, however, are not distributed uniformly across geographic circuits. The opportunity to appoint circuit and district judges to a particular circuit depends upon the vacancies which exist when a President takes office or which subsequently arise during his presidency. As a result, there will be variation at any given time both in the number of nominees a President succeeds in having confirmed across geographic circuits and in the percentage of judgeships across circuits which are held by appointees of a President.

Figure 1 and Figure 2 reveal notable variation among the 12 geographic circuits and the Court of Appeals for the Federal Circuit in the number of U.S. circuit and district court judgeships held by President Obama's appointees as well as in the percentage of circuit and district judgeships in each circuit held by his appointees.

As Figure 1 shows, President Obama has appointed the greatest number of U.S. appeals court judges to the Fourth Circuit (i.e., 6 confirmed nominees), the Second Circuit (5), the Ninth Circuit (4), and the Federal Circuit (3). In contrast, as of this writing, no nominees of President Obama have been confirmed to either the Eighth Circuit Court of Appeals or the U.S. Court of Appeals for the D.C. Circuit. The Eighth Circuit, comprising Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota, does not (as of May 31, 2012) have any existing vacancies. There are presently, however, three vacancies on the D.C. Circuit, including Supreme Court Chief Justice John G. Roberts's former seat on the court. If no appointment to the D.C. Circuit occurs before January 20, 2013, President Obama will be the first President in more than 50 years who has served a full four-year term without having a single nominee confirmed to this court.

As for U.S. district courts, Figure 1 shows that President Obama has had the greatest number of judges appointed to district courts located within the Ninth Circuit (22 confirmed district nominees), the Second Circuit (13), and the Fourth Circuit (13). Under President Obama, at least one district court judge has been appointed in each circuit. The two circuits with the fewest confirmed Obama district court nominees are the First Circuit (3) and the Sixth Circuit (4).

The circuits in the federal judiciary vary in the number of appellate and district court judgeships that are statutorily authorized. Consequently, the circuits in which a President appoints the largest (or smallest) number of nominees might not always correspond to the circuits in which his appointees also constitute the largest (or smallest) percentage of sitting judges.

Figure 2 shows, however, that President Obama's confirmed U.S. courts of appeals nominees hold the greatest percentage of seats in three of the same circuits to which he also has the greatest number of confirmed nominees (with the exception of the Ninth Circuit). Obama appointees now account for 40.0% of circuit judges on the Fourth Circuit Court of Appeals, 38.5% on the Second Circuit, and 25.0% on the Federal Circuit.

Currently, in 5 (of 13) judicial circuits, President Obama's U.S. courts of appeals appointees account for a greater percentage of active appellate judges than Obama circuit court appointees do across the nation as a whole (i.e., greater than 16.2%). In addition to the three circuits already identified, the other two are the First Circuit (16.7%) and the Eleventh Circuit (also 16.7 %).

The three circuits with the greatest percentage of President Obama's district court appointees are the D.C. Circuit (33.3% of district court judgeships), the Eighth Circuit (28.6%), and the Seventh Circuit (25.5%). Notably, President Obama's success in having district court nominees confirmed in the D.C. and Eighth Circuits is in contrast to having no circuit court nominees, thus far, confirmed to these same two circuits.

Overall, in 6 (of 12) geographic circuits, President Obama's district court appointees currently occupy a greater percentage of authorized district court judgeships than Obama's district court appointees do across the nation as a whole (i.e., greater than 17.2%). In addition to the D.C., Eighth, and Seventh Circuits, these six circuits include the Fourth Circuit (23.2% of district court judgeships), the Second Circuit (21.0%), and the Ninth Circuit (20.0%).

Comparison of Inherited Vacancies with Current Vacancies

Figure 3 displays the number of U.S. circuit and district court vacancies that existed when President Obama began his current term on January 20, 2009. For the purposes of this report, these vacancies are referred to as "inherited vacancies." The figure also provides the number of current vacancies (as of May 31, 2012), broken down by vacancies for which a nomination currently is pending in the Senate Judiciary Committee, vacancies pending on the Senate Executive Calendar, and vacancies for which no nomination is currently pending.

As Figure 3 indicates, 17 more circuit and district court judgeships are vacant than when President Obama took office (a total of 72 current vacancies, as of May 31, 2012, compared with 55 on January 20, 2009).

For there to be fewer circuit or district court vacancies at the end of President Obama's current term than the 55 judgeships vacant when his term began, at least 18, or 54.5%, of the 33 nominations pending in committee or on the Executive Calendar, as of May 31, 2012, would have to be confirmed during the remainder of this Congress. Further, in the likely event of judicial departures in the months ahead creating more court vacancies, reducing total vacancies would require confirmation of more than 18 nominees.

Recent presidential election years, however, provide examples of Senate confirmation of more than 18 judicial nominations after May 31. Specifically, in 5 of the last 8 completed presidential election years, the Senate has confirmed more than 18 circuit or district court nominations after May 31. The numbers of post-May 31 confirmations of circuit or district court nominations in these 5 presidential election years, starting in 1980, were as follows: 32 in 1980; 28 in 1984; 31 in 1992; 28 in 2004; and 22 in 2008.

Figure 3 also indicates that of the 72 current circuit or district court vacancies, 41 (or 56.9%) are vacancies for which, as of May 31, 2012, the President had not selected a nominee. These 41 vacancies have been vacant, on average, for 551.8 days. Of the 41, 34 (82.9%) are district court vacancies and 7 (17.1%) are circuit court vacancies. Finally, of the 41, 17 (41.5%) are presently classified as "judicial emergencies" by the Judicial Conference of the United States. Of these 17 judicial emergencies, 14 (82.4%) are district court vacancies.

Figure 3 also reveals a much more pronounced increase, from when President Obama took office to the present, in the number of district court vacancies than of circuit court vacancies. Specifically, while the current number of circuit court vacancies is the same as when President Obama took office on January 20, 2009 (i.e., 13), the current number of district court vacancies is 17 more (59 versus 42).

This difference in the increased number of vacancies between circuit and district courts might reflect, in part, the longer amount of time President Obama has taken to name individuals to district court vacancies than to circuit court vacancies. According to one study, President Obama took, on average, during his first three years in office 399 days to make nominations for district court vacancies versus 230 days to make nominations for circuit court vacancies. The median figures for the time needed by President Obama to make nominations followed a similar pattern, with a median of 364 days from appointment opportunity to nomination for district court nominations and 198 days for circuit court nominations.

These statistics, however, should not be interpreted to mean that the increase in the number of circuit and district court vacancies from when President Obama took office is solely the function of the speed with which the President has submitted nominations to the Senate. As discussed further in the third section of this report, factors outside an Administration's control also influence the number of vacancies that exist at any given time and the length of time that the vacancies remain unfilled. These include the rate at which judges depart office and institutional and political factors related to the processing of nominations in the Senate.

Comparison of President Obama with Recent Predecessors

This section uses various statistical measures to compare the judicial nomination and confirmation processes at work during the Obama and other recent presidencies. It first compares the number and percentage of confirmed U.S. circuit and district court nominees from Presidents Reagan to Obama. It then provides, for Presidents Clinton to Obama, a comparison of the number of circuit and district court vacancies inherited by each of the three Presidents and the number of vacancies that existed on February 1 of their second, third, and fourth years in office. It concludes by comparing selected features of the Senate judicial confirmation process during the tenures of the five most recent Presidents. Specifically, it compares, for circuit and district court nominees, (1) the time that elapsed from first nomination to first committee hearing; (2) the time from first committee report to confirmation; and (3) the percentage of confirmed nominees receiving Senate roll call votes.

This report, it should be acknowledged, does not analyze or take a position on the number or percentage of a President's judicial nominees that would be appropriate for the Senate to confirm; on the average (or median) length of time that would be appropriate for, or needed by, the Senate Judiciary Committee to process judicial nominations, or the Senate to take final action on them; or on whether confirmation of circuit and district court nominations should occur by roll call vote or voice vote. Similarly, this report does not analyze or take a position on the appropriate amount of time for an Administration to select nominees for circuit and district court judgeships.

Number and Percentage of Confirmed Judicial Nominees

Table 2 presents the total number of circuit and district court nominees, the total number of nominees confirmed, and the percentage confirmed during the first terms of Presidents Reagan through Obama. While Presidents sometimes have nominated particular individuals to a court more than once, this table counts such nominees only once. In other words, it does not account for multiple nominations of the same individual.

The table reveals that President G.H.W. Bush had the greatest total number of circuit court nominees confirmed among the five Presidents during their first terms (i.e., 42 confirmed nominees). President Reagan had the greatest percentage of circuit nominees confirmed during a first term, 86.8%. In contrast, President Obama thus far has had the second-lowest percentage of circuit court nominees confirmed, 70.7%, and the lowest number of circuit nominees confirmed (i.e., 29).

For district court nominees, President Clinton had the greatest number confirmed during the first term of a presidency for this period (i.e., 169). This number was followed closely by that for President G.W. Bush (168). President G.W. Bush, however, had the greatest percentage of district court nominees confirmed during a first term (nearly 95%). President Obama, thus far, has had the lowest number of district court nominees confirmed (117) and the second-lowest percentage of district nominees confirmed (78.0%).

Inherited Vacancies and Subsequent Vacancies at Selected Dates

Table 3 and Table 4 compare, for President Obama and his two most recent predecessors, (1) the number of U.S. circuit and district court vacancies that each inherited at the beginning of his presidency; (2) the number of circuit and district court vacancies as of February 1 of each President's second, third, and fourth years in office; and (3) the percentage of circuit and district court vacancies without nominees on February 1 of each of those years. Presidents Reagan and G.H.W. Bush are omitted from this particular table due to data limitations in identifying vacancies and nominations that existed for those vacancies during their two presidencies. February 1 is used as the approximate date for the beginning of a President's second, third, and fourth years in office.

Table 3 reveals that President Clinton inherited 17 vacancies at the beginning of his first term, a number which had decreased to 12 by February 1 of his fourth year in office. Of the three most recent Presidents, President Clinton is the only one for whom the percentage of circuit court vacancies without nominees was 50% or higher at the beginning of his second, third, and fourth years in office. As mentioned below in the discussion accompanying Table 4 , President Obama is alone among the three Presidents in holding this distinction for district court nominees.

President G.W. Bush inherited a greater number of circuit court vacancies than either Presidents Clinton or Obama (i.e., 26 vacancies). The number of circuit court vacancies increased during President G.W. Bush's first year in office, reaching 31 by February 1 of his second year, but subsequently decreased to 25 and 17, respectively, on February 1 of his third and fourth years in office. This general pattern, of the number of vacancies increasing during the first year in office and then decreasing over the subsequent two years, also characterized both President Clinton's and Obama's tenures.

Notably, President G.W. Bush is the only President of the three for whom the percentage of vacancies without nominees was below 50% at the beginning of his second, third, and fourth years in office. This, as mentioned below, was also the case for district court vacancies during the G.W. Bush presidency. In other words, at the beginning of President G.W. Bush's second, third, and fourth years in office, circuit and district court nominees had been selected for a majority of the vacancies which existed at those times.

President Obama inherited fewer circuit court vacancies than either Presidents Clinton or G.W. Bush. Of the three Presidents, however, he is the only one who began his fourth year in office with more vacancies than existed when he took office (as is also the case with district court vacancies under President Obama). The percentage of circuit court vacancies without nominees was below 50% at the beginning of President Obama's third and fourth years in office. In contrast, the percentage of district court vacancies without nominees was, as Table 4 reveals, above 50% at the beginning of those years of the Obama presidency (at 53.6% and 55.2%, respectively).

As Table 4 shows, President Clinton inherited a greater number of district court vacancies than either Presidents G.W. Bush or Obama. Some of the 89 vacancies inherited by President Clinton were attributable to the creation of 74 new district court judgeships in 1990, of which 25 still were unfilled at the start of his presidency on January 20, 1993. The number of district court vacancies in existence at the beginning of each of President Clinton's first four years in office steadily decreased, going from 89 to 81 to 53 to 41. It was not until the beginning of his fourth year in office, however, that the percentage of vacancies without nominees dropped below 50% (in contrast to the 72.8% and 81.1% of district court vacancies with no nominee as of February 1 of the second and third years, respectively).

President G.W. Bush inherited 59 district court vacancies when he assumed office on January 20, 2001. The number of vacancies increased from 59 to 68 from the beginning of his first year to the beginning of his second year but, as with President Clinton, the number of vacancies subsequently decreased: from 68 vacancies at the beginning of his second year in office, to 36 vacancies a year later, and to 29 vacancies on February 1 of his fourth year.

Notably, the percentage of district court vacancies without nominees was below 50% as of February 1 of the second, third, and fourth years of the G.W. Bush presidency (in contrast to the higher percentages shown at the same points during the Clinton and Obama presidencies). By February 1, 2004, this percentage had decreased to 13.8%, a result, in part perhaps, of what has been characterized as President G.W. Bush's "well-oiled nomination machinery."

President Obama inherited 42 district court vacancies, fewer than either Presidents Clinton or G.W. Bush. Despite this, a higher number of district court vacancies existed at the beginning of his second, third, and fourth years in office than at corresponding points during the Clinton and G.W. Bush presidencies. Additionally, President Obama is the only President among the three for whom the percentage of district court vacancies without nominees was above 50% on each February 1 of his second, third, and fourth years in office.

That district court vacancy figures have, over time, been greater during the Obama presidency than during the Clinton and G.W. Bush presidencies might be, in part, a result of the time taken for President Obama to nominate persons to fill district court vacancies. According to one study, President Obama took 399 days, on average, during his first three years to make such nominations, compared with 366 days, on average, for President Clinton during his first three years, and 272 days, on average, for President G.W. Bush during his first thee years.

As mentioned previously, the speed with which a President submits judicial nominations to the Senate reflects factors both within an Administration's control and outside its control. These factors are discussed further in the section entitled "Factors Influencing the Selection and Confirmation Process for U.S. Circuit and District Court Nominations."

Selected Features of the Senate Confirmation Process

This section provides, by presidency (from Reagan to Obama), comparative statistics of several features of the Senate confirmation process for circuit and district court nominees. The calculations represented graphically in Figures 4 through 6 are based on nomination and confirmation statistics from each President's entire tenure, whether it was one or two terms.

Length of Time from First Nomination to First Committee Hearing

Figure 4 tracks, by presidency (from Reagan to Obama), the mean and median number of days from first nomination to first committee hearing for all circuit and district court nominees who received hearings during the period January 20, 1981, through May 31, 2012.

All nominees who received hearings are included in the calculations, regardless of whether they were eventually confirmed or their nomination were returned, withdrawn, or rejected by the Senate. In cases when a nominee received a hearing only after being renominated, the waiting time is calculated from the date of the first nomination to the committee hearing. Additionally, when nominees received more than one committee hearing, the statistics used to generate Figure 4 measure only the length of time from a nominee's first nomination to his or her first hearing.

Figure 4 shows that during the 1981 to 2012 period, circuit court nominees of President G.W. Bush waited more days to receive a hearing than did the nominees of the other four Presidents. The mean and median number of days for a circuit court nominee to receive a committee hearing after being nominated ranged from a low of 43.1 and 23.0 days, respectively, during the Reagan presidency to 246.8 and 145.0 days, respectively, for the G.W. Bush presidency. The calculations for the G.W. Bush nominees from first nomination to first hearing included relatively long waiting periods for nominees such as Priscilla R. Owen (waiting 440 days from first nomination to first hearing), Deborah L. Cook (630 days), Jeffrey S. Sutton (630 days), Richard A. Griffin (721 days), and David W. McKeague (951 days).

Circuit court nominees during the Clinton presidency were the only other group of circuit court nominees during the 1981 to 2012 period who waited, on average, more than 100 days from first nomination to first hearing. President Clinton's circuit court nominees waited an average of 120.2 days to receive hearings (although the median waiting time was lower, i.e., 91.0 days). As Figure 4 shows, these longer waiting times under President Clinton were a distinct increase over the average and median waiting times of 78.0 days and 65.5 days, respectively, experienced by the circuit court nominees of President G.H.W. Bush.

Finally, although President Obama, compared with his four most recent predecessors, has had fewer, and the second-smallest percentage of, circuit court nominees confirmed (see Table 2 above), his circuit court nominees have waited, on average, less time from first nomination to first hearing, 69.6 days, than the circuit nominees of Presidents G.H.W. Bush, Clinton, and G.W. Bush. Only President Reagan's circuit nominees waited, on average, less time from first nomination to first hearing (i.e., 43.1 days).

Figure 4 shows, by presidency, less striking differences in the amount of time district court nominees, compared with circuit court nominees, waited for hearings. The mean and median number of days from first nomination to first hearing for district court nominees ranged from a low of 43.2 and 22.0 days, respectively, during the Reagan presidency to 123.5 and 87.5 days, respectively, during the G.W. Bush presidency.

As with circuit court nominees during the 1981 to 2012 period, the average waiting time from first nomination to first hearing for district court nominees increased with each presidency from Reagan to G.W. Bush but subsequently declined during the Obama presidency. The average waiting time, thus far, for President Obama's district court nominees from first nomination to first hearing, 83.2 days, is now nearly the same as the average waiting time experienced by district court nominees during the G.H.W. Bush presidency, 82.6 days.

Although the median waiting time, at present, from first nomination to first hearing during the Obama presidency (77.0 days) is less than the median waiting time during the G.W. Bush presidency (87.5 days), it is higher than the median waiting times for district court nominees during the G.H.W. Bush and Clinton presidencies (65.0 and 68.0 days, respectively) and more than three times higher than the median waiting time of 22.0 days for President Reagan's district court nominees.

Length of Time from First Committee Report to Confirmation

Figure 5 shows, by presidency (from Reagan to Obama), the mean and median number of days from first committee report to confirmation for all circuit and district court nominees who were confirmed during the period January 20, 1981, to May 31, 2012. These calculations include days elapsed for nominations which were reported out of committee only to be returned to the President, subsequently resubmitted by the President, reported again by the Judiciary Committee, and then confirmed by the Senate. Figure 5 shows that, in general, both the mean and median waiting time between committee report and confirmation increased from presidency to presidency, starting with the circuit and district court nominees of President G.H.W. Bush.

For confirmed circuit court nominees, the fewest days, on average, that elapsed from first committee report to confirmation occurred during the G.H.W. Bush presidency (i.e., 7.8 days). The mean number of days from first committee report to confirmation increased over 10 times from the G.H.W. Bush presidency to the Clinton presidency, from 7.8 to 82.2 days. From the Clinton presidency to the G.W. Bush presidency, the average waiting time for circuit court nominees from first committee report to confirmation increased slightly to 83.1 days, only to increase substantially, by nearly 57 days, under President Obama to an average (thus far) of 139.7 days.

The median number of days from first committee report to confirmation also increased after President G.H.W. Bush but remained relatively short during the Clinton and G.W. Bush presidencies. The median line graph for circuit court nominees in Figure 5 shows that roughly half of President Clinton's 65 confirmed circuit court nominees (during his two terms) were confirmed within 14 days of their nominations being reported out of committee. Likewise, roughly half of President G.W. Bush's 61 confirmed circuit court nominees (during his two terms) were confirmed within 18 days of their nominations being reported. In contrast, President Obama has, thus far, had no circuit court nominees confirmed under 25 days of their nominations first being reported out of committee. Instead, the median number of days for President Obama's 29 confirmed circuit court nominees is 132.0, roughly 7.3 times greater than the median number of 18 days for the 61 confirmed circuit nominees of his immediate predecessor, President G.W. Bush.

The average number of days that elapsed from first committee report to confirmation for circuit court nominees during the Clinton and G.W. Bush presidencies was noticeably greater than the median number of days experienced by these nominees for the report to confirmation stage. These differences reflect the fact that many noncontroversial nominees were confirmed relatively quickly after their nominations were reported out of committee (thus, pushing down the median figures) while a smaller number of cases stayed on the Senate Executive Calendar for relatively lengthy periods of time, and often involved multiple nominations of the same individual. These outliers (the nominees experiencing relatively lengthy waits between first report and confirmation) had a greater statistical effect on the average number of days between first report and confirmation than on the median number of days.

As with President G.H.W. Bush's confirmed circuit court nominees, district court nominees during his presidency waited, on average, a shorter time from first committee report to confirmation (i.e., 4.6 days) than did the district nominees of the four other Presidents. The average number of days increased to 28.2 days during the Clinton presidency and to 37.5 days during the G.W. Bush presidency. During the Obama presidency, the average number of days, thus far, has increased further to 105.1 days as 42 (35.9%) of President Obama's 117 confirmed district court nominees waited at least 100 days from first committee report to confirmation.

As Figure 5 shows, the median number of days between first committee report and confirmation of district court nominees by presidency also increased during this period, starting with the nominees of President G.H.W. Bush. From the low median of 1.0 days for nominees during the G.H.W. Bush presidency, the median increased to 8.0 days for Clinton district court nominees. It then increased about 2.6 times from the Clinton to G.W. Bush presidency, to 21.0 days, and about 4.3 times from the G.W. Bush to Obama presidency, to 90.0 days.

Percentage of Confirmed Judicial Nominees Receiving Senate Roll Call Votes

Roll call votes are not required to confirm nominations, but the recorded vote is an increasingly common element of unanimous consent agreements that provide for Senate consideration of judicial nominations. Figure 6 shows, for Presidents Reagan to Obama, the percentage of confirmed U.S. circuit and district court nominees who were approved by Senate roll call votes rather than by voice votes. The figure accounts for roll call votes on circuit and district court nominees recorded during each President's entire tenure, whether it was one or two terms.

As the figure reveals, a relatively small percentage of President Reagan's and G.H.W. Bush's circuit and district court nominees received Senate confirmation by roll call votes. According to CRS data, 5 (or 6.0%) of President Reagan's 83 confirmed circuit nominees and 1 (2.4%) of G.H.W. Bush's 42 circuit court nominees were approved by roll call votes. Additionally, only 1 district court nominee was confirmed by roll call vote during the Reagan presidency and no district court nominees were confirmed by roll call votes during G.H.W. Bush's presidency.

Confirmation by roll call votes became more common during the Clinton presidency, with 16 (24.6%) of 65 confirmed circuit court nominees and 32 (10.5%) of 305 confirmed district court nominees receiving Senate roll call votes. It was not, however, until President G.W. Bush's tenure that a majority of lower court nominees were approved by roll call (rather than by voice) votes, with 49 (80.4%) of 61 circuit court nominees and 141 (54.0%) of 261 district court nominees confirmed in this way. This trend has continued under President Obama, with 24 (82.8%) of 29 confirmed circuit court nominees receiving roll call votes and 65 (55.6%) of 117 district court nominees receiving roll call votes (as of May 31, 2012).

Factors Influencing the Selection and Confirmation Process for U.S. Circuit and District Court Nominations

This final section identifies selected factors which may influence various statistical aspects of the lower court appointment process and variation in these statistics across presidencies.

The factors are organized and discussed in the approximate order in which they influence the selection and confirmation process from its initial to final stages: from (1) the appointment opportunities a President has during his tenure; to (2) the process used by an Administration for identifying, vetting, and selecting judicial nominees; to (3) the processing of a President's judicial nominations by the Senate.

The factors discussed below do not constitute an exhaustive list of independent variables that affect confirmation rates, and are not always readily quantifiable in terms of how they affect the selection and confirmation process for judicial nominees.

Appointment Opportunities

Opportunities for a President to make circuit and district court appointments arise when judgeships are vacant or are scheduled to become vacant. Various factors influence the number of such opportunities a President will have during his tenure in office. One such factor, at the start of a presidency, will be the number of judicial vacancies already in existence (i.e., the judicial vacancies a President inherits when taking office). The number of inherited vacancies, in turn, will be influenced by various factors. These include the frequency with which judicial departures occur and new judgeships are statutorily created in the years or months immediately prior to the new presidency; the extent to which the outgoing President, during this same period, makes nominations to fill judicial vacancies; and the rate at which the Senate confirms these nominations before the new President takes office.

A large number of judicial vacancies created before the start of a new presidency might or might not result in many appointment opportunities for the incoming President. Much would depend on how prompt the previous President was in making nominations to fill newly created judicial vacancies and on how willing the Senate was to confirm those nominations. The different rate, for instance, at which the Senate confirmed district court nominations immediately prior to the G.W. Bush and Obama presidencies was one factor in how many district court appointment opportunities each President inherited upon taking office. During the presidential election year of 2000, 56 district court nominations were pending in the Senate, of which 31 (or 55.4%) were confirmed. In contrast, during the presidential election year of 2008, 37 district court nominations were pending in the Senate, of which 24 (64.9%) were confirmed. This variation contributed to differences in the number of appointment opportunities for Presidents G.W. Bush and Obama.

Legislation creating new judgeships might also provide a new President with the opportunity to appoint a greater number of judges than he might have inherited. Legislation substantially increasing the number of authorized judgeships was enacted in 1978 (Omnibus Judgeship Act, P.L. 95-486 ); 1984 (Bankruptcy Amendments and Federal Judgeship Act, P.L. 98-353 ); and 1990 (Federal Judgeship Act, P.L. 101-650 ). The large number of district court vacancies, for example, inherited by President Clinton contributed, in turn, to the relatively large number of district court confirmations during his presidency. The large number of district court vacancies inherited by President Clinton was, in part, the result of 74 new district court judgeships created by the Federal Judgeship Act of 1990.

Over the course of a presidency, opportunities for a President to make circuit and district court appointments continue to be affected by the rate at which judges depart office (by taking senior status, retiring, resigning, or dying). During some presidencies, substantial new judicial appointment opportunities also have arisen because of the statutory creation of new circuit and district court judgeships. Both factors—judicial departures and the statutory creation of new judgeships—can, throughout a President's tenure, affect the number of persons nominated by the President and the number confirmed by the Senate.

For example, a study found that, largely as a result of judges retiring from full-time service on the bench, President Obama was confronted during his first three years in office with more judicial vacancies than his two immediate predecessors:

92 judges took senior status in the first three years of the Obama administration compared to 72 and 70 in the Clinton and Bush administrations' first three years.... Had district judges taken senior status in Obama's first three years at the same rate they did under Clinton or Bush, there would have been almost no increase in vacancies....

The Selection of Nominees by a President

A variety of factors can affect how long a President takes to select a nominee to fill a judicial vacancy. These factors include how many individuals are involved in identifying and vetting potential nominees, the specific selection criteria a President desires to emphasize in identifying nominees, whether a Supreme Court vacancy occurs, and, if so, the resources devoted to filling that vacancy. A vacancy on the Supreme Court, for example, occurred early in both the Clinton and Obama Administrations, and in both instances, while the Administrations' searches were underway for a Supreme Court nominee, the Presidents sent few lower court nominations to the Senate.

The level of consultation between a President and a nominee's home state Senators also can influence the President's pace in selecting nominees for judicial vacancies. Home state Senators traditionally play an important role in the selection of district and, to a lesser extent, circuit court judges. The pace might be slowed by communication or other difficulties between the President and those Senators who represent states with vacant federal judgeships. Additionally, if the home state Senators are themselves slow in recommending a candidate, or if they and the President cannot agree on a suitable candidate, the nomination of an individual to fill a vacant judgeship may be delayed.

Another factor affecting a President's pace in selecting judicial nominees is the degree of priority he attaches to the process. According to one account, for example, judicial selection may not have been a priority for the Obama Administration during the 111 th Congress. "The surest key to understanding the politics, processes, and outcomes of the Obama judicial selection record in the 111 th Congress," according to the account, is "the recognition that judges were not seen as a priority by those closest to the President. Judicial selection was not a major focal point in the [A]dministration's legislatively driven domestic policy agenda, nor was it seen as a 'legacy' issue."

Finally, the speed at which a President selects nominees might be influenced by the length of his Administration's vetting process. One recent study, for example, found that the time from vacancy to nomination during the first 14 months of the Obama Administration was longer than at the same point in the G.W. Bush Administration, especially for circuit court nominees. The greater time for President Obama to submit nominees, the study said, was likely due in part to the pre-nomination candidate vetting by the ABA's Standing Committee on the Federal Judiciary. The G.W. Bush Administration, the study noted, chose not to have its judicial candidates rated by the ABA committee (prior to submitting them to Congress). By contrast, the Obama Administration "brought the committee, and thus the additional 30 to 45 days typically consumed by its investigations, back into the pre-nomination stage."

The Processing of Judicial Nominations by the Senate

As in the nominee selection stage, the processing of judicial nominations by the Senate from first nomination to final Senate action is also affected by many institutional and political factors. Various studies, for example, have concluded that how long lower federal court nominees wait in the Senate confirmation process, from first nomination to final action, is affected by such factors as the extent of ideological differences between the President and the opposite party in the Senate, or of interest group opposition to certain nominees. Other factors cited were whether nominees had "champions" on the Senate Judiciary Committee, the point in a session when nominations arrived in the Senate, and the kind of ratings given nominees by the American Bar Association's Standing Committee on the Federal Judiciary. Some of these factors might also contribute to other features of the confirmation process discussed in this report, e.g., whether a nominee is ultimately confirmed, and, if so, whether he or she is confirmed by roll call vote rather than voice vote.

The presence or absence of "divided government" (with the President and Senate majority of opposite political parties) also might influence the processing of judicial nominations by the Senate. One study concludes, however, that whether the President and Senate majority are of the same party or not, "presidents continue to select judges according to the same criteria and the Senate confirms or does not confirm nominations according to the same criteria." Divided government, though, may affect the procedural strategies used to oppose a President's nominees. It has been suggested, for example, that Senators "may rely on certain types of ... tactics during the confirmation process more or less depending on" whether the party controlling the presidency is also the majority party in the Senate.

Some factors might influence how quickly judicial nominations are processed at the committee level but not on the floor (and vice versa). For example, the role of the ABA's Standing Committee on the Federal Judiciary in evaluating judicial candidates may be seen as a factor in the time that a circuit or district court nomination is pending in the Judiciary Committee (but not in the time that a reported nomination is pending on the Senate Executive Calendar). If the ABA committee's role is (as it usually has been over the decades) to evaluate judicial candidates before the President selects a nominee, then the ABA's evaluation does not add to the time between when the President makes a nomination and the Senate Judiciary Committee reports it. If, however, the ABA's role is (as it was during the G.W. Bush presidency) to evaluate only after a person has been nominated, then the time taken for that evaluation will add to the total time that the nomination is pending in the Judiciary Committee.

Once a nomination has been reported from committee, the time taken until final Senate action might be influenced by political or other factors not present (or minimally so) at the committee level. Even if a nominee is non-controversial and received bipartisan support from the committee, significant delays in filling a judicial vacancy might occur when a judicial nomination, after being placed on the Executive Calendar, is blocked for one reason or another from floor consideration by Senators through the use of "holds," or objections to unanimous consent requests.

Finally, another factor that might affect the processing of judicial nominations by the Senate (and, thus, judicial confirmation statistics) is the blue slip policy of the Senate Judiciary Committee, as set by its chair. Under this policy, which dates back to at least 1917, the committee chair seeks the assessment of Senators regarding various nominations for offices in their states, including those for U.S. district court judgeships, U.S. circuit court judgeships, U.S. attorneys, and U.S. marshals.

In practice, the chair sends a blue-colored form to both home state Senators regarding judicial nominations in their state. If a home state Senator has no objection to a nominee, the blue slip is returned to the chair with a positive response. If a Senator, however, has misgivings about the nominee and wants to stop or slow committee action, he or she can decide not to return the blue slip, delay returning it, or return it with a negative response. Most chairs of the Judiciary Committee have required a return of positive blue slips by both a state's Senators before allowing consideration of a nomination.

It should be noted, however, that the return of positive blue slips by both home state Senators does not always lead to a relatively speedy confirmation. In the 112 th Congress, circuit and district court nominations have been reported by the Judiciary Committee only after home state Senators returned positive blue slips for the nominations. Nevertheless, the average time in the current Congress during which circuit and district court nominations have been pending on the Senate Executive Calendar before being confirmed has reached historically high levels.

Appendix. Data Used for Figures 1, 2, and 4 through 6

Data Used for Figures 1 and 2

Data Used for Figure 4

Data Used for Figure 5

Data Used for Figure 6