History question: How often have judges nominated by the POTUS been confirmed by

[Renob]

Perhaps I should have been more precise – I don’t mean that filibusters were unconstitutional, only that what the Democrats in the Senate are doing now is not in line with the spirit of the Constitution. “Advise and consent,” at least to me, does not mean that a minority of Senators can thwart the will of the President and the majority of the Senate on the President’s judicial nominees.

Otto, from the Senate Republican Policy Committee paper (true, not a “neutral” cite, but you will find everything they do meticulously researched and accurate): “many Senators explained that a more appropriate metric would be ‘2372-0’ — the number of judicial nominees who have been confirmed since the advent of the modern cloture rule in 1949, versus the total number of nominees filibustered until Miguel Estrada met that fate in early 2003.” Also, “Democrats and Republicans agree that until Miguel Estrada asked the President to withdraw his name in September 2003, no circuit court nominee had ever been withdrawn or defeated for confirmation due to the refusal of a minority to permit an up-or-down vote on the Senate floor.” And here, “. . . as Senator Schumer was forced to concede, until Miguel Estrada asked the President to withdraw his nomination in September 2003, every circuit court nominee ever subjected to a cloture vote ultimately was confirmed by the Senate on an up-or-down vote.” The paper has footnotes on this information.

[mhendo]

The OP didn’t just ask about Circuit Court judges.

Given that this is the case, it is worth pointing out that Republicans have actually filibustered to prevent a Chief Justice of the Supreme Court nomination from going through.

As the US Senate’s website says, in an article entitled “Filibuster Derails Supreme Court Appointment,” Lyndon’s Johnson’s nomination of Abe Fortas to replace Earl Warren as Chief Justice was derailed by the filibuster.

[Renob]

@mhendo

The OP didn’t just ask about Circuit Court judges.

Given that this is the case, it is worth pointing out that Republicans have actually filibustered to prevent a Chief Justice of the Supreme Court nomination from going through.

As the US Senate’s website says, in an article entitled “Filibuster Derails Supreme Court Appointment,” Lyndon’s Johnson’s nomination of Abe Fortas to replace Earl Warren as Chief Justice was derailed by the filibuster.

Actually, the RPC paper deconstructs this myth, too:

Democrats especially objected to Republicans’ demonstration that President Johnson’s withdrawal of Abe Fortas’s nomination to be Chief Justice was not a filibuster [e.g., Leahy, S14637]. Senators Hutchison and Craig each took the floor to read a recent letter from former Senator Robert Griffin to Senator Cornyn (R-MI) [Hutchison, S14637; Craig, S14559-61]. Senator Griffin had helped lead the opposition to then-Justice Fortas on the floor of the Senate.

In his letter to Senator Cornyn, former Senator Griffin explained that the opposition to Justice Fortas’s elevation was bipartisan, and that it was grounded in concerns about the judge’s ethics. He also explainedthat the Senate debate had been underway for only four days when President Johnson withdrew the nomination. A single cloture petition was filed, resulting in a 45-43 vote — less than the 67 votes then required to cut off debate. Senator Griffin explained that this early cloture vote was not evidence of a filibuster — indeed, he showed that during the 1968 debate, he personally had protested that cloture had been filed prematurely. Senator Griffin instead concludes that the 45-43 cloture vote demonstrated that Justice Fortas lacked the 51 votes he needed for confirmation, and that this was why the President withdrew the nomination — not because of a “filibuster.” [See Craig, S14560, for text of letter].

[mhendo]

@Renob

Actually, the RPC paper deconstructs this myth, too:

The fact that you say it’s a myth doesn’t make it so, my friend.

You’ve already made it clear that you think a filibuster to block a judicial nomination is “not in line with the spirit of the Constitution.”

Well, while the 1968 attempt at a filibuster may not have been the final cause of Jonhson’s failure to get Fortas into the Chief Justice’s chair, and while it is possible that Fortas would have been rejected anyway, the fact remains that some Republicans and Southern Democrats were worried that he would be accepted, and were willing to filibuster in order to slow down the process and to prevent that possibility.

The Wall Street Journal ran an op-ed on June 10 last year, describing the circumstances surrounding the battle over the Fortas nomination. Although the Journal piece argued that Fortas never had the votes anyway, the fact remains that it also continually refers to the tactics used by Fortas’s opponents as a “filibuster.” For example:

A filibuster followed, but not for long. On Oct. 1, the Senate voted on a motion for cloture that would have ended debate on the nomination and allowed an immediate vote on whether to confirm Justice Fortas as chief justice.

<snip>

This evidence – which suggests that, if anything, Justice Fortas might have had a majority opposed to his confirmation – casts doubt on the likelihood that a committed plurality of 50 senators (who, with Vice President Humphrey, would have constituted a majority) would have voted for Justice Fortas’s confirmation had the filibuster not prevented it.

<snip>

Even assuming that the Fortas filibuster was legitimate…

<snip>

The Fortas filibuster lasted a little over a week. It slowed down the deliberative process, but it did not bring it to a halt.

Even the Journal, which was strongly opposed to the recent Democratic filibuster, can only really make the case that it’s different from the Fortas filibuster because, in the end, Fortas wouldn’t have got the votes anyway. But the vote never even took place.

And when you said that using the filibuster to prevent a judicial nomination was “not in line with the spirit of the Constitution,” you were talking about a matter of principle, not just of results. And those Republicans and Southern Democrats made it quite clear back then that they willing to use the tactic.

The Wall Street Journal op-ed is reprinted here.

[friedo]

@Otto

Not quite. Article II, section 2: 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.

Doh!! I knew that (and was thinking of the text of that very clause) but for some reason second-guessed myself when writing my post. I need more sleep, or something. :o

[Ravenman]

During the Clinton Administration, he transmitted to the Senate:

Two Supreme Court nominations, both confirmed.
106 nominations to the Circuit Courts of Appeals; 65 confirmed
382 nominations to District Courts; 303 confirmed
6 nominations to the Court of International Trade; 5 confirmed
7 nominations to the Court of Federal Claims; 7 confirmed
9 nominees to Tax Court, 9 confirmed
1 nomination to the Court of Appeals for Veterans Claims, confirmed
24 nominees to the Superior Court of DC, 22 confirmed
5 noms to DC Court of Appeals, 4 confirmed
2 nominations to Court of Appeals for the Armed Forces, both confirmed.

I’m looking for a similar list for the Bush Administration, haven’t found it yet.

[Ravenman]

I’m cobbling this together from the DOJ website for the Bush Administration. Keep in mind that the numbers will not compare directly with Clinton, because, of course, Clinton’s nominees have all been acted or not acted upon, whereas some of Bush’s nominees may have been recents, awaiting a hearing, etc.

33 nominees to the Court of Appeals, 13 confirmed
81 nominees to District Courts, 59 confirmed
6 to Federal Claims, 6 confirmed
1 to International Trade, 1 confirmed.

The DOJ site does not list any nominations for other courts – I’m not sure if that is because there have been no nominations to the Tax Court, for example, or if it is because DOJ simply doesn’t list those other courts. I’m inclined to think the former more than the latter.

[mhendo]

Actually, Ravenman, i think your figures might be for the period since 1/2003 only. By combining the figures on this DOJ site (nominations 1/2001 through 12/2002) with the figures on this DOJ site (nominations since 1/2003), i get the following figures:

                          Nominations                      Confirmed

Circuit court:                 65                              30

District Court:               185                              143

**TOTAL:                         250                             173**

According to the second of those links, there are also currently a total of 39 Circuit Court nominations and 63 District Court nominations pending at various stages of the review process.

[mhendo]

I almost missed this from the two sites that i referred to in my last post:

No nominations were rejected by the Senate, and no nominations were withdrawn at the request of the nominee or the President during the 107th Congress.

and

No nominations have been rejected by the Senate, one nomination has been withdrawn during the 108th Congress and one was returned at the end of the first session.