U.S. Circuit and District Court Nominations During President Trump’s First Year in Office: Comparative Analysis with Recent Presidents
Released: 2018-05-02T00:00:00

Introduction

The process by which lower federal court judges are nominated by the President and considered by the Senate has, in recent decades, been of continuing interest to Senators. During recent Senate debates 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 has also 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 floor votes on confirmation. Of related concern to the Senate have been the potential effects of delaying, or at other times rushing, the process by which judicial vacancies are filled.

This report provides information and analysis on several aspects of the judicial nomination and confirmation process during President Donald Trump's first year in office (as well as during the first year of each of his three immediate predecessors—Presidents Barack Obama, George W. Bush, and Bill Clinton).

Most of the statistics presented and discussed in this report were generated from an internal CRS judicial nominations database. Other data sources, however, are noted where appropriate. The statistics account only for nominations made to U.S. circuit court and U.S. district court judgeships.

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 (i.e., 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 concerns nominations made by President Trump and other recent Presidents to the U.S. circuit courts of appeals and the U.S. district courts. Outside the scope of the report are the occasional nominations that these Presidents made to territorial district courts and the nine-member U.S. Court of International Trade.

U.S. Courts of Appeals

The U.S. courts of appeals 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 the nation is divided into 12 geographic circuits, each with a U.S. court of appeals. One additional nationwide circuit, the U.S. Court of Appeals for the Federal Circuit, has specialized subject matter jurisdiction.

Altogether, 179 judgeships for these 13 courts of appeals 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, 6, while the Ninth Circuit (comprising Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) has the most, 29.

U.S. District Courts

U.S. district courts are the federal trial courts of general jurisdiction. There are 91 Article III district courts: 89 in the 50 states, plus one in the District of Columbia and one more in 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. The Eastern District of Oklahoma (Muskogee) has 1 authorized judgeship, the smallest number among Article III district courts, while the Southern District of New York (Manhattan) and the Central District of California (Los Angeles) each have 28 judgeships, the most among Article III district courts.

U.S. Circuit and District Court Vacancies

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, is 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, is influenced by various factors. These include the frequency with which judicial departures occurred and new judgeships were statutorily created in the years or months immediately prior to a new presidency; the extent to which the outgoing President, during this same period, made nominations to fill judicial vacancies; and the rate at which the Senate confirmed these nominations before the new President took office.

Table 1 reports the number of U.S. circuit and district court vacancies that existed at the beginning of the first and second years of a presidency, as well as the corresponding percentage of authorized circuit and district court judgeships that were vacant at these times.

As shown by the table, the number of U.S. circuit court vacancies declined by 1, from 17 to 16, from the beginning of the first year to the beginning of the second year of the Trump presidency. The percentage of circuit court judgeships that were vacant at the beginning of President Trump's first year in office was 9.5%, while the percentage vacant at the beginning of his second year was 8.9%.

The number of U.S. district court vacancies increased by 38, from 86 to 124, from the beginning of the first year to the beginning of the second year of the Trump presidency. The percentage of district court judgeships that were vacant at the beginning of President Trump's first year in office was 12.8%, while the percentage vacant at the beginning of his second year was 18.4%.

Percent Change in Number of Vacancies from Beginning of First Year to Beginning of Second Year of a Presidency

U.S. Circuit Courts

There was a 5.9% decrease (from 17 to 16) in the number of U.S. circuit court vacancies that existed at the beginning of President Trump's first year in office compared to the beginning of his second year.

The largest percentage increase in the number of circuit court vacancies from the beginning of the first year to the beginning of the second year of a presidency occurred during the Obama presidency (a 46.2% increase from 13 to 19). The number of vacancies during the corresponding period of the George W. Bush presidency increased by 15.4% (from 26 to 30) and by 29.4% (from 17 to 22) during the Clinton presidency.

U.S. District Courts

There was a 44.2% increase (from 86 to 124) in the number of U.S. district court vacancies that existed at the beginning of President Trump's first year in office compared to the beginning of his second year. Of the four Presidents, this was the second-largest percentage increase in the number of district court vacancies from the beginning of the first year to the second year of a presidency.

The largest percentage increase in the number of district court vacancies from the beginning of the first year to the beginning of the second year of a presidency occurred during the Obama presidency (a 102.5% increase from 40 to 81). The number of vacancies during the corresponding period of the George W. Bush presidency increased by 22.2% (from 54 to 66) and by 5.6% (from 90 to 95) during the Clinton presidency.

Long-Lasting Vacancies that Continued to Exist After a President's First Year

For each of the presidencies included in this part of the analysis, there continued to exist—after a President's first year in office—a number of long-lasting U.S. circuit and district court vacancies at the beginning of a President's second year in office. For the purposes of this report, these long-lasting judicial vacancies are defined as those judgeships that first became vacant during a prior presidency.

U.S. Circuit Courts

Of the 16 circuit court vacancies that existed at the beginning of the second year of the Trump presidency (i.e., vacant as of January 1, 2018), 10 (62.5%) had become vacant during the Obama presidency. The 10 judgeships were vacant, on average, for 368 days while President Obama was in office (with a median vacancy length of 119 days).

Of the 19 circuit court vacancies that existed at the beginning of the second year of the Obama presidency (i.e., vacant as of January 1, 2010), 9 (47.4%) had become vacant during the George W. Bush presidency. The 9 judgeships were vacant, on average, for 1,308 days while President Bush was in office (with a median vacancy length of 820 days).

Of the 30 circuit court vacancies that existed at the beginning of the second year of the George W. Bush presidency (i.e., vacant as of January 1, 2002), 22 (73.3%) had become vacant during the Clinton presidency. The 22 judgeships were vacant, on average, for 741 days while President Clinton was in office (with a median vacancy length of 483 days).

U.S. District Courts

Of the 124 district court vacancies that existed at the beginning of the second year of the Trump presidency, 79 (63.7%) had become vacant during the Obama presidency. The 79 judgeships were vacant, on average, for 612 days while President Obama was in office (with a median vacancy length of 449 days).

Of the 81 district court vacancies that existed at the beginning of the second year of the Obama presidency, 32 (39.5%) had become vacant during the George W. Bush presidency. The 32 judgeships were vacant, on average, for 410 days while President Bush was in office (with a median vacancy length of 278 days).

Of the 66 district court vacancies that existed at the beginning of the second year of the George W. Bush presidency, 38 (57.6%) had become vacant during the Clinton presidency. The 38 judgeships were vacant, on average, for 515 days while President Clinton was in office (with a median vacancy length of 354 days).

Number and Percentage of Nominees Confirmed

Table 2 reports the number of individuals nominated to U.S. circuit and district court judgeships during President Trump's first calendar year in office (i.e., from January 20, 2017, through December 31, 2017), and also reports the number and percentage of nominees confirmed during the same period. The table also provides the same statistics for each of the first calendar years of his three immediate predecessors—Presidents Obama (2009), Bush (2001), and Clinton (1993).

U.S. Circuit Court Nominees

Overall, during his first year in office, President Trump nominated 19 individuals to U.S. circuit court judgeships, of whom 12 (or 63%) were also confirmed during the first year of his presidency.

Both the number and percentage of individuals confirmed as circuit court judges in 2017 were greater than the number and percentage of circuit court nominees confirmed during the first year of each of the other three presidencies included in Table 2 .

The number of individuals confirmed as U.S. circuit court judges during these other three years ranged from a low of 3 (during each of the first years of the Obama and Clinton presidencies) to a high of 6 (during the first year of the Bush presidency). The percentage of individuals confirmed during the first year of these three presidencies ranged from a low of 21% (during the first year of the Bush presidency) to a high of 60% (during the first year of the Clinton presidency).

In addition to having more circuit court nominees confirmed during his first year in office compared to each of the first years of his three immediate predecessors, the number of individuals confirmed as circuit court judges during President Trump's first year in office was also the greatest number of nominees confirmed to such judgeships during the first year of any presidency since at least 1945.

Additionally, the percentage of nominees confirmed in 2017 (63%) was the highest percentage of circuit court nominees confirmed during the first year of any presidency since 1981 (when 8 of 9, or 89%, of circuit court nominees were confirmed during President Reagan's first year in office).

U.S. District Court Nominees

During his first year in office, President Trump nominated 49 individuals to U.S. district court judgeships—of whom 6 (12%) were also confirmed during the first year of his presidency.

Both the number and percentage of individuals confirmed as district court judges in 2017 were lower than the number and percentage of such nominees confirmed during the first year of each of the other three presidencies included in Table 2 .

The number of individuals confirmed as U.S. district court judges during these other three years ranged from a low of 9 (during the first year of the Obama presidency) to a high of 24 (during the first year of the Clinton presidency). The percentage of individuals confirmed during these three other years ranged from a low of 43% (also during the first year of the Obama presidency) to a high of 61% (during the first year of the Bush presidency).

In contrast to the postwar record high number of circuit court nominations confirmed during President Trump's first year in office, the number of individuals confirmed as district court judges (six) was the fewest number of district court nominees confirmed by the Senate during the first year of any presidency since at least 1945. The percentage of district court nominees confirmed (12%) was also the smallest percentage of district court nominees confirmed during the first year of any presidency for the same period.

The first year of the Trump presidency is the second instance since 1945 of a President having fewer than half of the individuals he nominated to district court judgeships during his first year in office also confirmed by the Senate during his first year. The first instance of this occurring was during the Obama presidency in 2009, when fewer than half (43%) of President Obama's first-year district court nominees were also confirmed by the Senate during his first year in office.

The first year of the Trump presidency is also the third instance since 1945 of fewer than 10 district court nominees being confirmed by the Senate during a President's first year in office (with 6 confirmed in 2017). Prior to 2017, Presidents Obama and Eisenhower had the fewest number of district court nominees confirmed during the first year of a presidency (each had 9 confirmed in 2009 and 1953, respectively).

Select Demographic Characteristics of Nominees

The demographic diversity of individuals nominated to U.S. circuit and district court judgeships during a President's first year in office has varied across recent presidencies. Note, though, that the numerical breakdown in the demographic characteristics of individuals a President nominates during his first year in office is not necessarily predictive of the final numerical breakdown in the characteristics of all the individuals he nominates during his entire term in office.

U.S. Circuit Court Nominees

Gender

Figure 1 provides, for President Trump and his three immediate predecessors, the breakdown in the number and percentage of men and women appointed to U.S. circuit court judgeships during a President's first year in office. Of individuals nominated during President Trump's first year in office, 79% (15 of 19) were men and 21% (4) were women.

In terms of the percentage of individuals nominated during his first year in office, President Trump had—among the four Presidents—the lowest percentage of nominees who were women (21%). In terms of the number of nominees who were women, President Trump tied President Obama for nominating the second greatest number of women to circuit court judgeships during a President's first year in office (with 4 female nominees apiece).

Of the four Presidents, President Clinton had the greatest percentage of nominees who were women during his first year in office (60%), while President George W. Bush nominated the greatest number of women during his first year in office (7).

Race

Figure 2 shows the racial background of individuals nominated to U.S. circuit court judgeships during each President's first year in office. Of individuals nominated during President Trump's first year, 89% (17 of 19) were white and 11% (2) were Asian American. Of the four Presidents, President Trump had the greatest percentage and number of Asian American individuals among his first-year nominees (11% and 2, respectively).

Overall, of the four Presidents, President Trump had the smallest percentage of non-white individuals among his first-year nominees (11%). Each of the two non-white nominees during his first year in office was Asian American. No African American or Hispanic individuals were nominated to circuit court judgeships during this period. President Clinton had fewer non-white circuit court nominees during his first year in office (1 nominee compared to 2 for President Trump) but also nominated fewer individuals during his first year (4 nominees compared to 19 for President Trump).

Of the four Presidents, President Obama nominated, during his first year in office, both the greatest percentage and number of non-white individuals to circuit court judgeships (50%, or 6 of 12 nominees). As shown by the figure, President Obama nominated the greatest percentage and number of African Americans to circuit court judgeships during his first year (33%, or 4 of 12 nominees) and, along with President George W. Bush, was one of two Presidents to nominate a Hispanic individual to a circuit court judgeship during his first year in office. President Obama was also, along with President Trump, one of two Presidents to nominate at least one Asian American to a circuit court judgeship during his first year.

Age at Time of Nomination

Of the four Presidents considered here, President Trump's first-year U.S. circuit court nominees were the youngest (both in terms of the average and median age at the time of nomination). The average age of his nominees when first nominated was 49, while the median age was 48.

President Obama's first-year circuit court nominees were the oldest (both in terms of the average and median age at the time of nomination). Both the average and median age of his nominees were 55.

President Clinton's first-year circuit court nominees had an average age of 53 and a median age of 54, while President George W. Bush's first-year nominees had an average age of 50 and a median age of 49.

Overall, of President Trump's 19 first-year circuit court nominees, 58% (11 of 19) were under the age of 50 and 11% (2) were over the age of 55. In contrast, of President Obama's first-year circuit court nominees, 8% (1 of 12) was under the age of 50 and 33% (4) were over the age of 55.

Of President George W. Bush's first-year circuit court nominees, 52% (15 of 29) were under the age of 50 and 10% (3) were over the age of 55. Of President Clinton's first-year circuit court nominees, none were under the age of 50 and 20% (1 of 5) was over the age of 55.

U.S. District Court Nominees

Gender

Figure 3 provides the breakdown in the number and percentage of men and women appointed to U.S. district court judgeships during a President's first year in office. Of individuals nominated during President Trump's first year in office, 76% (37 of 49) were men and 24% (12) were women.

Of the four Presidents, President Trump nominated the lowest percentage of women to district court judgeships during his first year in office (24%). In terms of the number of women nominated during his first year, he nominated the second greatest number of women (12).

Of the four Presidents, President Obama nominated the greatest percentage of women during his first year in office (48%, or 10 of 21 nominees), while President Clinton nominated the greatest number of women during his first year (14).

Race

Figure 4 shows the racial background of individuals nominated to U.S. district court judgeships during each President's first year in office. Of individuals nominated during President Trump's first year, 92% (45 of 49) were white, 4% (2) were Asian American, 2% (1) were African American, and 2% (1) were Hispanic. President Trump was, along with President Obama, one of two Presidents to nominate at least one Asian American to a district court judgeship his first year in office.

Overall, of the four Presidents, President Trump had the smallest percentage of non-white individuals among his first-year nominees (8%), as well as the fewest number of non-white nominees (4). Compared to the other three Presidents considered here, President Trump nominated the smallest percentage and fewest number of African American and Hispanic individuals to district court judgeships during his first year in office.

Overall, of the four Presidents, President Obama, during his first year, nominated both the greatest percentage and largest number of non-white individuals to district court judgeships (52%, or 11 of 21 nominees). President Obama had the greatest percentage of African Americans and Asian Americans among his first-year district court nominees (33% and 14%, respectively). He also had the largest number of Asian Americans among his first-year nominees (3). President Clinton had the largest number of African Americans among his first-year district court nominees (10), while President Bush had the greatest percentage and largest number of Hispanics among his first-year nominees (8% and 3).

Age at Time of Nomination

Of the four Presidents, President Trump's first-year district court nominees were the oldest (in terms of the average age at the time of nomination). The average age of his nominees when they were first nominated was 51. The median age was 50.

President Obama's first-year district court nominees had an average age of 50 and a median age of 51 (the oldest median age of district court nominees among the four Presidents). President George W. Bush's first-year nominees had an average age of 49 and a median age of 50, while President Clinton's first-year district court nominees had an average age of 49 and a median age of 48.

Overall, of President Trump's first-year district court nominees, 47% (23 of 49) were under the age of 50 and 29% (14) were over the age of 55.

Of President Obama's first-year district court nominees, 43% (9 of 21) were under the age of 50 and 24% (5) were over the age of 55. Of President George W. Bush's first-year district court nominees, 44% (16 of 36) were under the age of 50 and 19% (7) were over the age of 55. Of President Clinton's first-year district court nominees, 62% (26 of 42) were under the age of 50 and 14% (6) were over the age of 55.

Ratings of Nominees by the American Bar Association

Since 1953, every presidential Administration, except those of George W. Bush and Donald Trump, has sought ABA pre-nomination evaluations of its prospective U.S. circuit and district court nominees. During the Bush presidency, as well as during the current Administration, the ABA has provided post-nomination evaluations of nominees.

The ABA's Standing Committee on the Federal Judiciary is responsible for evaluating all individuals nominated to U.S. circuit and district court judgeships. The committee is comprised of 15 lawyers with varied professional experiences and backgrounds. According to the ABA, the evaluation by the committee focuses strictly on a candidate's professional qualifications—specifically, a candidate's integrity, professional competence, and judicial temperament—and does not take into account an individual's philosophy, political affiliation, or ideology. Note that some have, at times, disputed this characterization.

In evaluating integrity, the committee states that it "considers the prospective nominee's character and general reputation in the legal community, as well as the prospective nominee's industry and diligence." In evaluating professional competence, it assesses a prospective nominee's "intellectual capacity, judgment, writing and analytical abilities, knowledge of the law, and breadth of professional experience." And in evaluating judicial temperament the committee considers "the prospective nominee's compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law."

As stated above, the ABA, at present, provides post-nomination evaluations of individuals nominated to U.S. circuit and district court judgeships. At the conclusion of the evaluation process, each member of the ABA committee rates the candidate as "well qualified," "qualified," or "not qualified" and independently conveys his or her rating to the chair. If the candidate is found "not qualified" (either unanimously or by a majority of the committee), the committee determined that the nominee does "not meet the committee's standards with respect to one or more of its evaluation criteria—integrity, professional competence, or judicial temperament."

There are instances when the committee is not unanimous in its rating of a nominee. When this happens, "the majority rating represents the committee's official rating of the prospective nominee." The statistics presented in Figure 5 and Figure 6 reflect the percentage and numerical breakdown of the committee's official ratings for individuals nominated during each President's first year in office (whether that rating was unanimous or supported by a majority of the committee).

The evaluations of judicial candidates are provided by the ABA on an advisory basis. It is solely in a President's discretion as to how much weight to place on a judicial candidate's ABA rating. Consequently, a "not qualified" ABA rating of a judicial candidate in some instances may dissuade a President from nominating an individual, while in other instances the President may nominate regardless of the rating. The evaluations submitted by the ABA are similarly advisory when it comes to final Senate action on judicial nominations.

U.S. Circuit Court Nominees

As shown by Figure 5 , of President Trump's U.S. circuit court nominees, 84% (16 of 19) received a rating of well qualified, 11% (2) received a rating of qualified, and 5% (1) received a rating of not qualified.

The percentage of President Trump's first-year circuit court nominees who received a rating of well-qualified (84%) was the second highest among the four Presidents (with 100% of President Clinton's first-year circuit court nominees having received a rating of well qualified).

As shown by Figure 5 , a majority of a President's circuit court nominees have, at least for the data included here, received a rating of "well qualified." Consequently, a President who submits relatively more nominations is also likely to have more nominees who are rated as well qualified than a President who submits fewer nominations. For example, of the four presidencies examined here, Presidents Bush and Trump submitted the greatest number of circuit court nominations to the Senate during each of their first years in office. President Trump had the second greatest number of nominees rated as well qualified (while President George W. Bush had the most nominees rated as well qualified).

Of the four Presidents considered here, President Trump had the only U.S. circuit court nominee who was rated as not qualified by the ABA during the first year of a presidency.

U.S. District Court Nominees

As shown by Figure 6 , of President Trump's U.S. district court nominees, 53% (26 of 49) received a rating of well qualified, 41% (20) received a rating of qualified, and 6% (3) received a rating of not qualified.

The percentage of President Trump's first-year U.S. district court nominees who received a rating of well qualified, 53%, was the lowest percentage of nominees among the four Presidents who received a rating of well qualified (while the percentage of his nominees who received a rating of qualified was 41%). President Obama had the highest percentage of his first-year district court nominees rated as well qualified (86%).

As shown by Figure 6 , a majority of a President's district court nominees have, at least for the data included here, received a rating of "well qualified." Consequently, a President who submits relatively more nominations is also likely to have more nominees who are rated as well qualified than a President who submits fewer nominations. For example, of the four presidencies examined here, President Trump submitted the greatest number of district court nominations to the Senate during his first year in office, and he also had the second greatest number of nominees rated as well qualified. And President Clinton submitted the second greatest number of district court nominations and had the greatest number who received a rating of well qualified.

Of the four Presidents, President Trump had both the greatest percentage (6%) and number (3) of first-year U.S. district court nominees who were rated as not qualified by the ABA. Presidents Bush and Clinton each had one first-year district court nominee rated as not qualified.

Of the four Presidents considered here, President Trump is also the sole President to have at least one circuit court nominee and at least one district court nominee rated as not qualified during his first year in office.

Time from Nomination to Confirmation

Table 3 reports the average and median number of days that elapsed from nomination to confirmation for all U.S. circuit and district court nominees who were confirmed during a President's first year in office. As shown by the table, the average number of days from nomination to confirmation for U.S. circuit and district court nominees confirmed during President Trump's first year in office was 115 days. The median number of days from nomination to confirmation was 109 days.

Of the four Presidents included in the table, President Trump's first-year nominees had the second longest average and median number of days from nomination to confirmation (President Obama's nominees had the longest average and median—137 and 130 days, respectively).

The average and median number of days from nomination to confirmation for President Trump's first-year nominees represent a departure from the upward trend in the length of time first-year nominees waited to be confirmed during the previous three presidencies. Specifically, it is the first instance over the past several presidencies in which the average and median wait times from nomination to confirmation of a President's first-year nominees were both shorter than the average and median wait times of his immediate predecessor's first-year nominees.

The decline in the average and median wait times for President Trump's first-year nominees (relative to President Obama's first-year nominees) occurred, in part, as a result of the shorter time nominees waited on the Executive Calendar to be confirmed once reported by the Senate Judiciary Committee. For example, President Trump's first-year nominees waited, on average, 34 days from committee report to confirmation (with a median wait of 19 days). In contrast, President Obama's first-year nominees waited, on average, 60 days from committee report to confirmation (with a median wait of 43 days).

Table 4 reports, for nominees confirmed during a President's first year in office, the number of U.S. circuit and district court nominees who waited a specified period of time from nomination to confirmation. For example, of the 12 U.S. circuit court nominees confirmed during President Trump's first year in office, 6 were confirmed less than 100 days after being nominated; 4 were confirmed between 100 and 149 days after being nominated; 2 were confirmed between 150 and 200 days after being nominated; and none waited more than 200 days to be confirmed.

As shown by Table 4 , the first year of the Trump presidency is the first time since 1993 (the first year of the Clinton presidency) when at least half of a President's first-year circuit court nominees were confirmed within fewer than 100 days after being nominated.

One of President Trump's circuit court nominees, James C. Ho, was confirmed 59 days after being nominated. Another one of his circuit court nominees, Amul R. Thapar, was confirmed 65 days after being nominated. These were the shortest wait times, since 1993, from nomination to confirmation for any U.S. circuit court nominee confirmed during a President's first year in office.

President Trump's U.S. district court nominees were distributed equally across three of the specified periods of time—two waited less than 100 days from nomination to confirmation; two waited between 100 and 149 days; and two waited 150 to 200 days.

As shown by the table, President Trump was, of the four Presidents, the sole President who had at least one-third of his district court nominees (2 of 6) wait 150 or more days from nomination to confirmation.

One of President Trump's district court nominees, Dabney L. Friedrich, was confirmed 173 days after being nominated. Another of his district court nominees, Scott L. Palk, was confirmed 171 days after being nominated. These were the longest wait times, since 2001, from nomination to confirmation for any U.S. district court nominee confirmed during a President's first year in office.

Floor Consideration of Nominations

Floor consideration of U.S. circuit and district court nominations during the first year of the Trump presidency frequently involved the use of the cloture process to reach Senate confirmation. Additionally, the confirmation of nominees always occurred by roll call vote (rather than by unanimous consent or voice vote) and, for most circuit court nominations, was marked by a relatively high number of 'nay' votes among Senators not belonging to the President's party.

Use of Cloture to Reach Confirmation

In practice, Senate floor consideration of U.S. circuit or district court nominations follows one of two procedural tracks. Historically, most of these nominations have reached confirmation under the terms of unanimous consent agreements. On this procedural track, the Senate by unanimous consent not only takes up nominations for floor consideration, but also arranges for them to either receive up-or-down confirmation votes or be confirmed simply by unanimous consent.

At other times, however, unanimous consent to reach confirmation may not always be attainable. In these instances, the procedural track, for a nomination to move forward without unanimous consent, involves the Senate, after taking up the nomination, voting on a cloture motion to bring floor debate to a close. If the requisite majority under Senate rules supports closing debate, an "up-or-down" confirmation vote on the nomination must be held after a limited period for consideration.

During the first year of the Trump presidency, the cloture process (rather than unanimous consent) has been the primary means by which confirmation votes have been reached on U.S. circuit and district court nominations. Cloture was used for each of the 12 circuit court nominations that received a final up-or-down vote and for 5 of the 6 district court nominations that received a final vote. In contrast, during the first years of the other three presidencies included in this report's analysis, the cloture process was used once to reach an up-or-down vote on a circuit or district court nomination.

The routine use of cloture to reach final votes on U.S. circuit and district court nominations also occurred recently during the Obama presidency (although, as discussed above, not during his first year in office). For 13 months following the November 21, 2013, reinterpretation of Rule XXII (i.e., during part of President Obama's fifth year in office and most of his sixth year in office), votes on confirmation, including for uncontroversial judicial nominations, no longer were reached by unanimous consent, but instead by the cloture process.

Overall, the cloture process was used a total of 85 times during this period of the Obama presidency to reach up-or-down votes on U.S. circuit and district court nominations. Used primarily in the past to close debate on a relatively small number of nominations that did not enjoy wide bipartisan support, the cloture motion became, until the last day of the 113 th Congress, the invariable procedural tool used to reach confirmation votes for circuit and district court nominations.

Use of Roll Call Votes to Confirm Nominees

The Senate may confirm nominations by unanimous consent, voice vote, or by recorded roll call vote. When the question of whether to confirm a nomination is put to the Senate, a roll call vote will be taken on the nomination if the Senate has ordered "the yeas and nays."

Historically, the Senate has confirmed most district and circuit court nominations by unanimous consent or by voice vote. In recent decades, however, confirmations by roll call votes have become more common, and during the presidencies of George W. Bush and Barack Obama, they were the most common way that the Senate confirmed lower court nominations.

For the purposes of this report and the data reported below, any nominations that were confirmed by unanimous consent or confirmed by voice vote are included in the same category (i.e., the nominations were not approved by roll call vote).

Of the four presidencies included in Table 5 , the Trump presidency is the only one in which all of a President's first-year circuit and district court nominees were confirmed by roll call vote. Specifically, as shown by the table, each of the 12 U.S. circuit court nominees and 6 U.S. district court nominees confirmed in 2017 were approved by roll call vote (and none by voice vote or unanimous consent).

As was the case with President Trump's first-year circuit court nominees, all of the circuit court nominees confirmed during each of the first years of the Obama and George W. Bush presidencies were confirmed by roll call vote.

In contrast to each of President Trump's first-year district court nominees being confirmed by roll call vote, 4 of 9 of President Obama's first-year district court nominees and 7 of 22 of President George W. Bush's first-year district court nominees were confirmed by voice vote or unanimous consent.

Each of the circuit and district court nominees confirmed during the first year of the Clinton presidency were confirmed by voice vote or unanimous consent.

There are a number of institutional and political factors that may, in part, help to explain the more common occurrence, since the mid-1990s, of roll call votes being used to confirm U.S. circuit and district court nominees (including for many nominees considered uncontroversial). Some scholars, for example, have noted that as the confirmation process itself has become more contentious, Senators might use roll call votes for many, if not all, nominations as a way to slow down the process or to indicate their concerns, more generally, with the judicial appointment process. Roll call votes might also provide Senators who are motivated by ideological or policy considerations with a way to express their views about, or attempt to influence, the appointment process. Additionally, the use of roll call votes allows Senators to go on record in support or opposition to a President's nominees. Such position-taking by Senators might be important to constituents, political activists, and various interest groups.

Number of 'Nay' Votes Received at Time of Confirmation

Table 6 reports, for U.S. circuit and district court nominees who were confirmed by roll call vote during the first year of a presidency, the number of 'nay' votes his or her nomination received at the time of confirmation.

As shown by the table, 11 of 12 U.S. circuit court nominations that were approved by the Senate during President Trump's first year in office received more than 20 nay votes at the time of confirmation. Of these 11 nominations, the average number of nay votes was 43 (the median number of nay votes was also 43). No other presidency included in the table had as many circuit court nominees who were opposed by 20 or more Senators in recorded roll call votes.

Of the six district court nominees confirmed during President Trump's first year in office, two were confirmed without receiving any nay votes while the other four nominees confirmed received at least one nay vote.

Two of the district court nominees confirmed during the first year of the Trump presidency, Scott L. Palk and Trevor N. McFadden, were, of the total 22 district court nominees confirmed by roll call vote during the first years of the Trump, Obama, and Bush presidencies, the only two district court nominees who received any nay votes at the time of confirmation (none of President Clinton's first-year district court nominees were confirmed by roll call vote).