370 CHAPTER 12|THE COURTS
seen as unqualifi ed. The other 26 nominees were rejected for politi-
cal reasons. Most commonly, when a “lame duck” president makes a
nomination and the Senate is controlled by the opposing party, the
Senate will kill the nomination, hoping that its party will win the
presidency and nominate a justice more to its liking.
However, not all recent Supreme Court nominations have been
controversial. President Bill Clinton’s two Supreme Court picks
were judicial moderates who were overwhelmingly confi rmed—Ruth
Bader Ginsburg by a 96-to-3 vote and Stephen Breyer by an 87-to-9
margin. George W. Bush’s nominees, John Roberts and Samuel Alito,
were confi rmed by comfortable margins; the former by a 78-to-22
vote, with half of the Democrats supporting him, and the latter by a
58-to-42 margin. President Obama appointed the fi rst Hispanic to
serve on the Supreme Court, Sonia Sotomayor, who was confi rmed by
a 68-to-31 vote. Elena Kagan’s confi rmation by a 63-to-37 vote in 2010
meant that three women are serving on the Court for the fi rst time.
Contentious battles do occur, though, between the president and the Senate
over nominees to the federal bench and the Supreme Court, and these have recently
expanded to include nominees to the district and appeals courts. For much of the
nation’s history, the president did not play a very active role in the nomination pro-
cess for district courts; instead, he deferred to the home-state senator of his own
party to suggest candidates—a norm called senatorial courtesy. If there was no
senator of the president’s party from the relevant state, the president would consult
House members and other high-ranking party members from the state. The presi-
dent typically has shown more interest in appeals court nominations. The Justice
Department plays a key role in screening candidates, but the local senators of the
president’s party remain active.
Lately, the process has become much more contentious. The confi rmation rate
for federal judges has gone from between about 80 and 100 percent to less thanCONFIRMATION DELAY FOR FEDERAL JUDGES, 1981–2012
FIGURE » 12.2
Average Median250 daysU.S. Circuit Courts U.S. District Courts200150100500250 days200150100500
Reagan G.H.W.
BushClinton G.W.
BushObama Reagan G.H.W.
BushClinton G.W.
BushObamaSource: “Length of Time from Nomination to Confi rmation for ‘Uncontroversial’ U.S. Circuit and District Court Nominees: Detailed Analysis,”
Barry J. McMillion, Congressional Research Service, September 18, 2012, http://www.fas.org/sgp/crs/misc/R42732.pdf (accessed 10/2/12).
SENATE HEARINGS ON SUPREME
Court nominations have been
more confl ictual since the 1960s.
Although Sonia Sotomayor was
confi rmed by a 68–31 vote in 2009,
Senate Republicans challenged
her to explain and defend her
views on several issues.
senatorial courtesy A norm
in the nomination of district court
judges in which the president con-
sults with his party’s senators from
the relevant state in choosing the
nominee.