President Obama and his supporters constantly claim that Senate Republicans are being “obstructionist” and preventing the confirmation of his federal court nominees. If you look at the facts, however, Obama’s confirmation record is higher than the last three Presidents—even though he hasn’t made judicial nominations a priority.
As economist John Lott points out, 85 percent of Obama’s first-time circuit court nominees were confirmed. That’s higher than the last three Presidents (78 percent under George H. W. Bush, 74 percent under Bill Clinton, and 72 percent under George W. Bush). During the first year of Bush’s second term, only 22 nominees were confirmed. By comparison, 34 of Obama’s nominees have already been confirmed this year.
The number of vacancies in the federal courts increased during Obama’s first term, unlike during the first terms of Clinton and Bush. Currently there are 91 vacancies in the federal courts, and Obama has made nominations to roughly half of those vacancies. Of the current vacancies, 37 have been declared judicial “emergencies,” yet Obama has made nominations for only 18 of those 37 emergencies.
Rather than address all of the emergency vacancies, Obama has paid a disproportionate amount of attention to the D.C. Circuit, nominating several individuals to the court despite the fact that it has a decreasing caseload and more than enough judges to complete the work. A considerable portion of the D.C. Circuit’s cases involve federal agencies, and thus it plays a major role in federal policy. As Obama has pointed out, it “routinely ha[s] the final say on a broad range of cases involving everything from national security to environmental policy.… [Its] decisions impact almost every aspect of our lives.”
Obama has bemoaned the fact that his nominees have waited an “unprecedented” amount of time to be confirmed by the Senate. While some of Obama’s nominees have waited longer from the time they were voted out of the Senate Judiciary Committee to when they received a vote by the full Senate, the timing of that situation is almost exclusively controlled by Senate Majority Leader Harry Reid (D–NV). Bush’s nominees, on the other hand, waited longer from the time of their nomination to when the committee scheduled a hearing, which can be affected by the actions of Senators from either party.
Regardless of the length of time between nomination and confirmation, Obama is still outpacing Bush by two to one if you compare their second terms.