Circuit Court Nominations: The Numbers

Blogger Gerry Daly has done yeoman's work sifting through the Congressional record to compile the statistics on Circuit Court judicial nominees since Truman (hat tip: Andrew Sullivan). It's amazing how even with good statistics, all sorts of people can draw all sorts of conclusions. (Read the comment trail on that post.) Some people are pouncing on this as proof that the Democrats really are being "unprecedented obstructionists". But Gerry draws a fair conclusion from his statistics, observing only that the process has become increasingly politicized since Reagan, with confirmation rates steadily decreasing with each successive president. A few interesting observations jumped out at me. One was that no nominations were ever rejected. None. They were always either withdrawn or "returned", where "returned" is the equivalent of a pocket veto, in which the nominee never got a floor vote (for various reasons, including never making it out of committee, having a "hold" placed on them, etc). Thus it seems the Senate machinations are such that nominees have never gotten an "up or down vote"; they either get an "up vote" or they don't get a vote at all. (The wisdom behind at least some of this bureaucracy is that it's better for a nominee to quietly languish in committee rather than have the president suffer the humiliation of an outright rejection.) So it's certainly well precedented that nominees don't all get an "up or down vote". The mechanisms may have changed over the years (anonymous holds, "home state" prerogative, filibuster), but the result is not new. The other thing that struck me was that there have always been some number of judicial nominees who were not confirmed. By these stats, it appears that every president save Carter has had at least 10% of their nominees returned. So it would seem that even in the best of times, no president is perfect and the Senate would not be doing its job to consent 100% of the time.

I certainly agree that these statistics demonstrate an increasing politicization of the judicial nomination process over the last several presidents. To my mind, that is all the more reason that an explicit supermajority rule ought to be established for these nominations. It is precisely where partisanship is most strident that a supermajority mechanism is needed the most.