William_T._Bianco,_David_T._Canon]_American_Polit

504 Chapter 14Chapter 14 || The CourtsThe Courts

Recently the process has become much more contentious. While the confirmation

rate for federal judges has been relatively stable in the past 35 years (between 80 and

90 percent), the average time to confirm nominees has increased dramatically. The

average length of delay from nomination to confirmation has increased from a little

over 50 days in the 1980s to over 200 days in recent years (see Figure 14.2 for data

on noncontroversial nominations; when all nominations are included, the waits

are even longer, especially for George W. Bush’s nominees), and the situation has

intensified. Democrats blocked 39 of President Bush’s nominees between 2001 and

2009,^27 and Republicans returned the favor during Obama’s presidency by blocking

dozens of his nominees, which included employing a record number of filibusters of

lower-court nominees. After the Senate blocked three nominees to the D.C. Court

of Appeals, the second-most-important court in the nation, Democrats responded

in November 2013 by eliminating the filibuster on lower-court and executive branch

nominations but not Supreme Court nominations.^28 This move was originally labeled

the “nuclear option” by Democrats who had threatened to shut down the Senate if the

Republican leadership got rid of the filibuster during the George W. Bush presidency.

In response to the detonation of the nuclear option, the confirmation process slowed

to a trickle in President Obama’s last year, which produced a near-record level of

vacancies (more than 10 percent of all federal judgeships). With unified control of

government for the first time since 2009, Republicans moved quickly to fill many

of those vacancies and approve Trump’s nominations. To approve Neil Gorsuch’s

nomination, Senate Republicans eliminated the filibuster on Supreme Court

nominations. They also approved a record number of appeals court nominees in

Trump’s first year (12). However, there are still 95 vacancies on the federal bench

without nominees.^29

FIGURE

14.2

Average

Confirmation

Delay for

Uncontroversial

Federal Court

Nominations,

1981–2012

Since the 1980s, the length of

time needed to confirm federal

court nominations has increased

dramatically. Why do you think this

happened? Why does it matter?

250

U.S. Circuit Courts

U.S. District Courts

200

150

100

50

0

Days

Reagan G. H. W. Clinton

Bush

G. W.

Bush

Obama

Source: Barry J. McMillion, “Length of Time from Nomination to Confirmation for ‘Uncontroversial’ U.S. Circuit and

District Court Nominees: Detailed Analysis,” Congressional Research Service, September 18, 2012, http://fas.org

(accessed 6/25/14).

President Obama nominated Judge

Merrick Garland (right) to the Supreme

Court. Here, the nominee meets with

Senator Cory Booker (D-NJ). Judge

Garland, however, was not confirmed

prior to the end of Obama’s term, and

in 2017, President Trump nominated

Judge Gorsuch to fill the vacancy left

by Justice Scalia’s death.

Note: “Uncontroversial” nominees are those who were reported from the Judiciary Committee by a voice vote or a

unanimous vote and were confirmed by the Senate with a voice vote or no more than five votes in opposition.

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