# History question: How often have judges nominated by the POTUS been confirmed by **URL:** \ **Category:** Factual Questions\ **Created:** [May 5, 2004, 12:02am UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553 "2004-05-05T00:02:12Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Plan\_B](https://avatars.discourse-cdn.com/v4/letter/p/3ec8ea/32.png) [@Plan\_B](https://boards.straightdope.com/u/Plan_B)\ **Post date:** [May 5, 2004, 12:02am UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/1 "2004-05-05T00:02:12Z")
the Senate? Has there been a change since GWB took office? This is not meant to be a GD question. I’m not looking to learn who is correct in this dispute between the Senate and GWB. I’m just wondering what the tradition has been prior to 2001 and since 2001. Thanks. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [May 5, 2004, 12:36am UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/2 "2004-05-05T00:36:57Z")
All federal judges must be confirmed by the Senate. A small exception occurs when an appointment is made while Congress is not in session (recess appointment.) In this case, the judgeship expires when Congress is in session again, the person must be confirmed by the Senate to keep the position. ---
**Author:** ![BobT](https://avatars.discourse-cdn.com/v4/letter/b/8e8cbc/32.png) [@BobT](https://boards.straightdope.com/u/BobT)\ **Post date:** [May 5, 2004, 12:54am UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/3 "2004-05-05T00:54:10Z")
Are you just trying to find out how many judges were rejected by the Senate? That’s a relatively small percentage since the President will usually withdraw a nomination rather than face the humiliation of a rejection unless there is political capital to be gained by it. ---
**Author:** ![Plan\_B](https://avatars.discourse-cdn.com/v4/letter/p/3ec8ea/32.png) [@Plan\_B](https://boards.straightdope.com/u/Plan_B)\ **Post date:** [May 5, 2004, 1:31am UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/4 "2004-05-05T01:31:51Z")
> [@BobT](#): > > Are you just trying to find out how many judges were rejected by the Senate? That’s a relatively small percentage since the President will usually withdraw a nomination rather than face the humiliation of a rejection unless there is political capital to be gained by it. One of the chages I’ve heard recently is that the Dems in the Senate have broken with over 200 years of precedent in failing to pretty much routinely above the vast majority of federal judges appointed by the President. I’m trying to find out if this is true. So, for instance, if someone were to inform me that prior to 2001 99% of the judges were confirmed within two weeks of nominaton and since 2001 only 5% of the judges have been approved within any time frame, I’d know that the charge is true. Sorry if the OP was too brief. I may have been a little too concerned about avoiding into the politics of the issue and didn’t make myself clear. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [May 5, 2004, 2:12am UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/5 "2004-05-05T02:12:20Z")
> [@friedo](#): > > All federal judges must be confirmed by the Senate. > > A small exception occurs when an appointment is made while Congress is not in session (recess appointment.) In this case, the judgeship expires when Congress is in session again, the person must be confirmed by the Senate to keep the position. Not quite. Article II, section 2: > [@](#): > > The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. So a recess appointment doesn’t expire when the Senate goes back into session. The President I believe must resubmit the nomination; once the recess appointment is made it’s no longer before the Senate. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [May 5, 2004, 2:18am UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/6 "2004-05-05T02:18:00Z")
> [@Plan B](#): > > One of the chages I’ve heard recently is that the Dems in the Senate have broken with over 200 years of precedent in failing to pretty much routinely above the vast majority of federal judges appointed by the President. > > I’m trying to find out if this is true. I assume you mean “routinely approve”? I don’t have year-by-year stats on judicial confirmation rates, but [this article](http://seattletimes.nwsource.com/html/politics/2001784417_judges06.html) from November 2003 indicates that the vacancy rate in the federal judiciary is at its lowest in 13 years. There are about five or so judicial nominees who have been filibustered by the Democrats (two of whom have received recess appointments and one of whom withdrew his name from consideration). ---
**Author:** ![Plan\_B](https://avatars.discourse-cdn.com/v4/letter/p/3ec8ea/32.png) [@Plan\_B](https://boards.straightdope.com/u/Plan_B)\ **Post date:** [May 5, 2004, 3:22am UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/7 "2004-05-05T03:22:28Z")
> [@Otto](#): > > I assume you mean “routinely approve”? > > I don’t have year-by-year stats on judicial confirmation rates, but [this article](http://seattletimes.nwsource.com/html/politics/2001784417_judges06.html) from November 2003 indicates that the vacancy rate in the federal judiciary is at its lowest in 13 years. There are about five or so judicial nominees who have been filibustered by the Democrats (two of whom have received recess appointments and one of whom withdrew his name from consideration). Yeah, I did mean “routinely approve.” Thanks for the link. It seems to answer the question. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 5, 2004, 6:58am UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/8 "2004-05-05T06:58:05Z")
> [@](#): > > One of the chages I’ve heard recently is that the Dems in the Senate have broken with over 200 years of precedent in failing to pretty much routinely above the vast majority of federal judges appointed by the President. > > I’m trying to find out if this is true. For those who didn’t check the link, the article states four judicial nominees are currently being held up by Congressional Democrats and 168 judicial nominees have been approved. It also states “There are only a relative handful being filibustered and held up. And this contrasts with the dozens of Clinton nominees who were held up by the Republicans in the last six years of the Clinton administration.” ---
**Author:** ![UncleBill](https://avatars.discourse-cdn.com/v4/letter/u/d26b3c/32.png) [@UncleBill](https://boards.straightdope.com/u/UncleBill)\ **Post date:** [May 5, 2004, 12:29pm UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/9 "2004-05-05T12:29:02Z")
To be fair, the article also states: > [@](#): > > The vacancy rate "has been getting lower, but the real problem is the showdown at the circuit courts. We have seen an unprecedented obstruction campaign against the president’s nominees for the circuit courts… > > The administration says Bush has made 46 nominations to the appeals court, but only 29 have won confirmation. “That’s a 63 percent confirmation rate. Clinton had an 80 percent confirmation rate at the same time,” Nowacki said. “It’s an obstruction at an entirely different level.” Nowacki being John Nowacki, a Justice Department spokesman. There are two sides to every political fight. ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [May 5, 2004, 1:39pm UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/10 "2004-05-05T13:39:16Z")
This sentence from the news article: “There are only a relative handful being filibustered and held up. And this contrasts with the dozens of Clinton nominees who were held up by the Republicans in the last six years of the Clinton administration” hits at the heart of the debate. Right now Senate Democrats are engaging in the unprecedented practice of filibustering circuit court nominees. In fact, filibustering a judicial nominee is very rare and has been done few times in the past. Democrats are effectively thwarting the will of the majority of the Senate, since they know these nominees would get over 50 votes if they had an up-or-down roll call, so they must resort to a filibuster, which requires 60 votes to overcome. However, the article also points out that Republicans held up Clinton’s nominees during his term. However, it’s a mistake to equat the two, as this excerpt from a Senate Republican Policy Committee paper on the judiciary debate discusses: > [@](#): > > Republicans addressed this argument by clarifying the factual record and explaining why committee delays are different in principle. First, on the facts, Republicans explained that the bulk of the Clinton nominations listed in Democrats’ floor chart had expired at the end of the 106th Congress in January 2001. As Senator Nickles explained, “When people are nominated in the last year or the last few months of an administration, a lot of times they don’t get confirmed. That is not a filibuster” [S14617]. To illustrate this fact, Senators noted that when the first President Bush left office in 1993, 54 judicial nominations expired without action in the Democrat-controlled Judiciary Committee [Crapo, S14629; Sessions, 14663]. As for those nominees who were nominated earlier yet received no hearings or votes, Senator Sessions and others explained that some nominees do not clear the Judiciary Committee as a result of problems found during the background check that are not aired in public out of respect for the nominees’ reputations [e.g., S14688]. Committee delays may also occur due to insufficient consultation [Hatch, S 2314 (February 12, 2003)]. > > Second, on the principle, Republican Senators explained that there is an important legal difference between such a “committee hold” placed on a nominee while pending in committee — a hold voluntarily respected by the committee chairman — versus a filibuster on the floor supported by a minority of Senators. The actions of a committee chairman, who acts as the agent of the Senate majority, are the acts of the Senate majority itself. As Senator Cornyn explained when challenged by Senator Harkin to “morally” distinguish a committee hold (or committee inaction)from a filibuster — “The answer is: The line of moral demarcation is the Constitution and majority rule” [S14637]. Senator Crapo reinforced this point, noting that “if the committee does not act on these nominees [but] if the majority of the Senate wants to bring them forward, there is a discharge petition that can bring them forward” [S14629]. The Chairman of the Judiciary Committee serves at the pleasure of a majority of Senators, so his actions as Chairman necessarily are the will of a majority of Senators unless a majority of Senators demonstrates otherwise. [http://rpc.senate.gov/\_files/2JudgesReissue012704SD.pdf](http://rpc.senate.gov/_files/2JudgesReissue012704SD.pdf) There is certainly a difference between thwarting the will of the majority of the Senate (as the Democrats are doing now) and acting on behalf of the majority of the Senate (as the Republicans did in Clinton’s term). ---
**Author:** ![Early\_Out](https://avatars.discourse-cdn.com/v4/letter/e/6f9a4e/32.png) [@Early\_Out](https://boards.straightdope.com/u/Early_Out)\ **Post date:** [May 5, 2004, 1:55pm UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/11 "2004-05-05T13:55:30Z")
> [@Renob](#): > > There is certainly a difference between thwarting the will of the majority of the Senate (as the Democrats are doing now) and acting on behalf of the majority of the Senate (as the Republicans did in Clinton’s term). Yes, it makes a difference, but not to the President or his nominees. Whether the Senate is blocking the nominations via the “good” route (committee holds) or the “bad” route (filibuster), the net effect is the same: the President’s nominees aren’t making it to the bench. ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [May 5, 2004, 2:14pm UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/12 "2004-05-05T14:14:25Z")
So a filibuster by 40% of the Senate is slimy and underhanded, but a hold by a handful of committee members is proper and aboveboard, because the committee chairman is a member of the majority party, and we all know that party members never, ever break ranks. Gee, I wonder why they do all that messy voting, then. ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [May 5, 2004, 2:40pm UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/13 "2004-05-05T14:40:44Z")
**Nametag** , as Senator Crapo pointed out, “if the committee does not act on these nominees [but] if the majority of the Senate wants to bring them forward, there is a discharge petition that can bring them forward.” **Early Out** , it’s true that either way, the President’s nominees aren’t making it to the bench, but one is consistent with the Constitution and one isn’t. The Constitution nowhere grants a minority of Senators the right to hold up a President’s nominee, which is what the Democrats are doing via filibuster. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 5, 2004, 2:51pm UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/14 "2004-05-05T14:51:57Z")
> [@Renob](#): > > **Early Out** , it’s true that either way, the President’s nominees aren’t making it to the bench, but one is consistent with the Constitution and one isn’t. The Constitution nowhere grants a minority of Senators the right to hold up a President’s nominee, which is what the Democrats are doing via filibuster. This is a conclusory argument. Where does it say in the Constitution that a minority of senators can’t hold up a nominee? It says only that the Senate has the power to advise and consent. It seems to me that the actual operations of the Senate are left up to the Senate itself. The Senate created the filibuster as a valid tool. The Democrats didn’t invent it. Indeed, Republicans have enthusiastically used the filibuster when it served their interests. ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [May 5, 2004, 2:53pm UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/15 "2004-05-05T14:53:33Z")
I fail to see how, of two procedures that are not mentioned in the Constitution, one is "consistent " with it and the other is not. The notion of preventing a majority from overruling a large minority is very consistent with the Constitution, thank you very much, what with those supermajorities required for amendment and ratification. Filibusters are perfectly legal, as they are provided for in the Senate rules. ---
**Author:** ![Early\_Out](https://avatars.discourse-cdn.com/v4/letter/e/6f9a4e/32.png) [@Early\_Out](https://boards.straightdope.com/u/Early_Out)\ **Post date:** [May 5, 2004, 2:56pm UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/16 "2004-05-05T14:56:44Z")
> [@Renob](#): > > **Early Out** , it’s true that either way, the President’s nominees aren’t making it to the bench, but one is consistent with the Constitution and one isn’t. The Constitution nowhere grants a minority of Senators the right to hold up a President’s nominee, which is what the Democrats are doing via filibuster. A filibuster is unconstitutional? When can we expect SCOTUS to rule on that? Seriously, though, who’s responsible for creating the rules of the Senate? I refer you to the Constitution, Article I, Section 5, Clause 2: “Each House may determine the Rules of its Proceedings.” The Senate has decided, in its infinite wisdom, that this is how it wants to conduct its business. It seems a bit disingenuous then to turn around and brand “obstructionist” those who use those rules to further their own cause. Let the Senate change its rules, if it doesn’t like the way they’re being applied. They’ve certainly done it before. Remember when there was effectively no way to end a filibuster? Until 1917, one Senator could block action indefinitely. From 1917 until 1975, it took a two-thirds vote to invoke cloture. Only in 1975 was the threshhold lowered to three-fifths. ---
**Author:** ![Early\_Out](https://avatars.discourse-cdn.com/v4/letter/e/6f9a4e/32.png) [@Early\_Out](https://boards.straightdope.com/u/Early_Out)\ **Post date:** [May 5, 2004, 3:00pm UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/17 "2004-05-05T15:00:55Z")
Methinks we’ve wandered way beyond the bounds of a GQ thread, and have entered GD territory. Somewhere out there, there must be some straightforward stats that say, “Of all the judicial nominations trotted out by Pres X, the Senate confirmed Y% of them.” ---
**Author:** ![Early\_Out](https://avatars.discourse-cdn.com/v4/letter/e/6f9a4e/32.png) [@Early\_Out](https://boards.straightdope.com/u/Early_Out)\ **Post date:** [May 5, 2004, 3:17pm UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/18 "2004-05-05T15:17:47Z")
It’s surprisingly tough to find straightforward numbers. All I’ve dug up so far are some data points. This, from the _New York Times_, Nov. 10, 2003: > [@](#): > > Lost amid the grandstanding about a “crisis” in judicial nominations are the facts: 168 Bush nominees have been confirmed and only four rejected, a far better percentage than for President Bill Clinton. > > Bush administration nominees have been moving through the Senate at a rapid clip: in his first three years in office, President Bush has gotten more judges confirmed than President Ronald Reagan did in his first four. When Republicans controlled the Senate, more than 60 Clinton administration judicial candidates were blocked. A lot of the other sources are _very_ selective about the time period they look at. I’ve found several sites, for example, that trumpet the fact that Clinton got a higher percentage of his nominees approved during the first two years of his Presidency than Bush has. That’s all well and good, but Clinton was in office for eight years, not two. What happened during the remaining six years? And why aren’t those sources trotting out those numbers? (Rhetorical question, of course!) ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [May 5, 2004, 4:12pm UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/19 "2004-05-05T16:12:04Z")
> [@Renob](#): > > Right now Senate Democrats are engaging in the unprecedented practice of filibustering circuit court nominees. Leaving out the politics, I’d like a neutral cite for the statement that filibustering circuit court nominees is “unprecedented.” ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [May 5, 2004, 5:08pm UTC](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553/20 "2004-05-05T17:08:37Z")
> [@Otto](#): > > Leaving out the politics, I’d like a neutral cite for the statement that filibustering circuit court nominees is “unprecedented.” Actually, the recent Democratic filibusters do seem to have been unprecedencted. According to the [Jewish World Review](http://www.jewishworldreview.com/0303/eastland022503.asp), > [@](#): > > The question their filibuster raises is its justification, especially since, in the long history of the republic, the tactic never has been used against a circuit court nominee. > > Indeed, not that long ago, leading Democrats explicitly opposed judicial filibusters. Here are some famous last words, uttered by Sen. Patrick Leahy in 1998: “I would object and fight against any filibuster of a judge, whether somebody I opposed or supported. If we don’t like somebody the president nominates, vote him or her down.” [Next page](https://boards.straightdope.com/t/history-question-how-often-have-judges-nominated-by-the-potus-been-confirmed-by/243553.md?page=2)