# President Obama’s First-Term U.S. Circuit and District Court Nominations: An Analysis and Comparison with Presidents Since Reagan

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## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** May 2, 2013
- **Citation:** R43058

## Text

President Obama’s First-Term U.S. Circuit and District
Court Nominations: An Analysis and Comparison with
Presidents Since Reagan
-name redactedAnalyst on the Federal Judiciary
May 2, 2013

Congressional Research Service
7-....
www.crs.gov
R43058

CRS Report for Congress
Prepared for Members and Committees of Congress

Nomination and Confirmation of U.S. Circuit and District Court Judges

Summary
The process by which lower federal court judges are nominated by the President and considered
by the Senate is of continuing interest to Congress. Recent Senate debates in Congress over
judicial nominations have focused on issues such as the relative degree of success of President
Barack Obama’s nominees in gaining Senate confirmation (compared with other recent
Presidents) as well as the number and percentage of vacant judgeships in the federal judiciary and
the effect of delayed judicial appointments on judicial vacancy levels. This report addresses these
issues, and others, by providing a statistical analysis of nominations to U.S. circuit and district
court judgeships during the first terms of President Obama and his four most recent predecessors.
Some of the report’s findings include the following:
•

During his first term, President Obama nominated 42 persons to U.S. circuit
court judgeships. Of the 42, 30 (71.4%) were confirmed, 5 (11.9%) had their
nominations either withdrawn by the President or returned to the President and
not resubmitted to the Senate, and 7 (16.7%) had their nominations returned to
the President at the end of the 112th Congress and subsequently were renominated
during the 113th Congress.

•

During the first terms of the five most recent Presidents (Reagan to Obama), the
30 confirmed Obama circuit court nominees were tied with 30 Clinton nominees
as the fewest number of circuit nominees confirmed. The percentage of circuit
nominees confirmed during President Obama’s first term, 71.4%, was the
second-lowest, while the percentage confirmed during G.W. Bush’s first term,
67.3%, was the lowest.

•

Of the 173 persons nominated by President Obama to U.S. district court
judgeships during his first term, 143 (82.7%) were confirmed, 6 (3.5%) had their
nominations withdrawn or returned and not resubmitted, and 24 (13.9%) had
their nominations returned to the President and were renominated during the
113th Congress.

•

President Obama’s first term, compared with the first terms of Presidents Reagan
to G.W. Bush, had the second-fewest number of district court nominees
confirmed (143 compared with 130 for President Reagan) and the second-lowest
percentage of district court nominees confirmed (82.7% compared with 76.9%
for President G.H.W. Bush).

•

As it did during the first terms of Presidents Reagan, G.H.W. Bush, and Clinton,
the circuit court vacancy rate during President Obama’s first term increased
(from 7.3% at the beginning to 9.5% at the end). Over the five most recent
presidencies, G.W. Bush’s first term was the only one during which the circuit
court vacancy rate decreased (from 14.5% at the beginning to 8.4% at the end).

•

As it did during the first terms of Presidents Reagan and G.H.W. Bush, the
district court vacancy rate also increased from the beginning to the end of
President Obama’s first term (rising from 6.6% to 9.5%). President Obama is the
only President during this period for whom the district court vacancy rate
increased unaccompanied by the creation of new district court judgeships.

•

The average number of days elapsed from nomination to confirmation for circuit
court nominees confirmed during a President’s first term ranged from 45.5 days

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Nomination and Confirmation of U.S. Circuit and District Court Judges

during President Reagan’s first term to 277 days during President G.W. Bush’s.
For district court nominees, the average time between nomination to
confirmation ranged from 34.7 days (Reagan) to 221.8 days (Obama).
•

The median number of days from nomination to confirmation for circuit court
nominees confirmed during a President’s first term ranged from 28 days
(Reagan) to 225.5 days (Obama). For district court nominees, the median time
elapsed ranged from a low, again, of 28 days (Reagan) to 215 days (Obama).

•

President Obama is the only one of the five most recent Presidents for whom,
during his first term, both the average and median waiting time from nomination
to confirmation for circuit and district court nominees was greater than half a
calendar year (i.e., more than 182 days).

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Contents
Introduction...................................................................................................................................... 1
Article III Lower Courts .................................................................................................................. 2
U.S. Courts of Appeals .............................................................................................................. 2
U.S. District Courts ................................................................................................................... 3
Judicial Nominations and Confirmations During President Obama’s First Term............................ 3
Confirmation Status of President Obama’s Judicial Nominees ................................................. 3
Variation Across Geographic Circuits in Number and Percentage of Confirmed
Nominees ................................................................................................................................ 5
U.S. Circuit and District Court Vacancies at Beginning and End of First Term........................ 6
Comparison of President Obama with Recent Predecessors ........................................................... 9
Number and Percentage of Confirmed Judicial Nominees........................................................ 9
Circuit and District Court Vacancy Rates at Beginning and End of First Term ...................... 11
Selected Features of the Senate Confirmation Process............................................................ 13
Length of Time from Nomination to Confirmation........................................................... 13
Length of Time from Nomination to Committee Hearing................................................. 15
Length of Time from Committee Report to Confirmation ................................................ 17
Factors Influencing the Selection and Confirmation Process for U.S. Circuit and District
Court Nominations ..................................................................................................................... 21
Appointment Opportunities ..................................................................................................... 21
The Selection of Nominees by a President .............................................................................. 23
The Processing of Judicial Nominations by the Senate ........................................................... 24

Figures
Figure 1. U.S. Circuit and District Court Judgeships: Number of Vacancies Inherited by
President Obama and Number of Vacancies at End of First Term................................................ 7
Figure 2. U.S. Circuit and District Court Nominees of Five Most Recent Presidents:
Mean and Median Number of Days from Nomination to Confirmation for Nominees
During First Term ....................................................................................................................... 14
Figure 3. U.S. Circuit and District Court Nominees of Five Most Recent Presidents:
Mean and Median Number of Days from Nomination to Hearing for Nominees during
First Term.................................................................................................................................... 16
Figure 4. U.S. Circuit and District Court Nominees of Five Most Recent Presidents:
Mean and Median Number of Days from Committee Report to Confirmation for
Nominees during First Term ....................................................................................................... 18

Tables
Table 1. Confirmation Status of President Obama’s Judicial Nominees Who Were
Nominated during the 111th and 112th Congresses ........................................................................ 4
Table 2. U.S. Circuit and District Court Nominees of Five Most Recent Presidents:
Number Nominated, Number Confirmed, Percentage Confirmed during First Term ................ 10

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Table 3. U.S. Circuit and District Court Vacancy Rates of Five Most Recent Presidents at
Beginning and End of First Terms in Office ............................................................................... 12
Table 4. U.S. Circuit and District Court Nominees of Three Most Recent Presidents:
Average and Median Number of Days from Committee Report to Confirmation for
Nominees Whose Nominations Were Unopposed in Committee and on the Floor .................... 20

Contacts
Author Contact Information........................................................................................................... 27
Acknowledgments ......................................................................................................................... 27

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Introduction
The process by which lower federal court judges are nominated by the President and considered
by the Senate has, in recent decades, been of continuing interest to Senators. During recent Senate
debates over judicial nominations, differing perspectives have been expressed about the relative
degree of success of a President’s nominees in gaining Senate confirmation, compared with
nominees of other recent Presidents.1 Senate debate often has concerned whether a President’s
judicial nominees, relative to the nominees of other recent Presidents, encountered more difficulty
or had to wait longer, before receiving consideration by the Senate Judiciary Committee or up-ordown floor votes on confirmation.2 Of related concern to the Senate have been increases in recent
years in the number and percentage of vacant judgeships in the federal judiciary and the effect of
delays in the processing of judicial nominations on filling judicial vacancies.3
This report seeks to inform the current debate in three ways: first, by providing a statistical
analysis of President Barack Obama’s nominees, during his first term, to U.S. circuit court of
appeals and U.S. district court judgeships, and of any actions taken on their nominations by the
Senate Judiciary Committee and the full Senate; second, by using various statistical measures to
compare the success of President Obama’s judicial nominees, during his first term, in advancing
through the Senate confirmation process with the success of the judicial nominees during the first
terms of the four most recent preceding Presidents (Ronald Reagan, George H.W. Bush, Bill
Clinton, and George W. Bush); and third, by identifying various factors which might help explain
differences or variations found in judicial nomination statistics across the first terms of the five
Presidents.
Most of the statistics presented and discussed in this report were generated from an internal CRS
judicial nominations database. Other data sources, however, are noted where appropriate. The
statistics account only for nominations made to U.S. circuit court and U.S. district court
judgeships.4
1

See, for example, Sen. Patrick J. Leahy, “Executive Session,” Remarks in the Senate, Congressional Record, daily
edition, February 7, 2012, p. S362-S363, in which Senator Leahy stated:
Three years into President Obama’s first term, the Senate has confirmed a lower percentage of
President Obama’s judicial nominees than those of any President in the last 35 years. The Senate
has confirmed just over 70 percent of President Obama’s circuit and district nominees, with more
than one in four not confirmed.
See also Sen. Chuck Grassley, “Executive Session,” Remarks in the Senate, Congressional Record, daily edition, April
16, 2012, pp. S2311-S2312, in which Senator Grassley stated:
This year we have been in session for about 37 days, including today. During that time we will
have confirmed 15 judges. That is an average of better than one confirmation for every 2 ½ days we
have been in session. With the confirmation today, the Senate will have confirmed nearly 75
percent of President Obama’s [A]rticle III judicial nominations.
2
See, for example, contrasting views on these and related issues in floor remarks of Senators Leahy and Grassley in
“Executive Session,” Remarks in the Senate, Congressional Record, daily edition, May 7, 2012, pp. S2907-2908
(Leahy) and pp. S2909-2910 (Grassley); and in “Nomination of George Levi Russell III, To Be United States District
Judge for the District of Maryland,” Remarks in the Senate, Congressional Record, daily edition, May 14, 2012, pp.
S3117-3119 (Leahy) and pp. S3120-3121 (Grassley).
3
See CRS Report R41942, Vacancies on Article III District and Circuit Courts, 1977-2011: Data, Causes, and
Implications, by (name redacted).
4
Statistics in this report for district court nominations include the relatively rare nominations made by a President to
(continued...)

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Article III Lower Courts
Article III, Section I of the Constitution provides, in part, that the “judicial Power of the United
States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish.” It further provides that Justices on the Supreme Court
and judges on lower courts established by Congress under Article III have what effectively has
come to mean life tenure, holding office “during good Behaviour.”5 Along with the Supreme
Court, the courts that constitute the Article III courts in the federal system are the U.S. circuit
courts of appeals, the U.S. district courts, and the U.S. Court of International Trade.
As mentioned above, this report concerns nominations made by President Obama and other recent
Presidents to the U.S. circuit courts of appeals and the U.S. district courts (including the territorial
district courts). Outside the report’s scope are the occasional nominations that these Presidents
made to the nine-member U.S. Court of International Trade.

U.S. Courts of Appeals
The U.S. Courts of Appeals take appeals from federal district court decisions and are also
empowered to review the decisions of many administrative agencies. Cases presented to the
courts of appeals are generally considered by judges sitting in three-member panels. Courts
within the courts of appeals system are often called “circuit courts” (e.g., the First Circuit Court
of Appeals is also referred to as the “First Circuit”), because the nation is divided into 12
geographic circuits, each with a U.S. court of appeals. One additional nationwide circuit, the
Federal Circuit, has specialized subject matter jurisdiction. Altogether, 179 appellate court
judgeships for these 13 courts of appeals are currently authorized by law. The First Circuit
(comprising Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico) has the
fewest number of authorized appellate court judgeships, 6, while the Ninth Circuit (comprising
Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) has the
most, 29.
In this report, nominations to U.S. courts of appeals judgeships are frequently referred to as
“circuit court nominations.”

(...continued)
territorial district court judgeships, which were established by Congress pursuant to its authority to govern the
territories under Article IV of the Constitution. The three U.S. territorial courts are included in the report even though
they are not Article III courts and their judges serve 10-year terms rather than “during good Behaviour.” They are
accounted for because, like Article III district courts, territorial district courts hear cases arising out of federal law, their
decisions may be appealed to a U.S. circuit court of appeals, and their judicial nominations are referred to the Senate
Judiciary Committee. Additionally, Senate interest in district court nominations statistics often, if not always, extends
to nominations to the territorial, as well as to the Article III, district courts.
5
Pursuant to this constitutional language, Article III judges may hold office for as long as they live or until they
voluntarily leave office. A President has no power to remove them from office. Article III judges, however, may be
removed by Congress through the process of impeachment by the House and conviction by the Senate.

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U.S. District Courts
U.S. district courts are the federal trial courts of general jurisdiction. There are 91 Article III
district courts: 89 in the 50 states, plus one in the District of Columbia and one more in Puerto
Rico. Each state has at least one U.S. district court, while some states (specifically California,
New York, and Texas) have as many as four. Altogether, 673 Article III U.S. district court
judgeships are currently authorized by law.6 Congress has authorized between 1 and 28
judgeships for each district court.7
Additionally, there are three U.S. territorial district courts established by Congress pursuant to its
authority to govern the territories under Article IV of the Constitution. Judicial appointees to
these courts serve 10-year terms, with one judgeship each in Guam and the Northern Mariana
Islands, and two in the U.S. Virgin Islands.8
In sum, references throughout this report to U.S. district court judgeships include a total of 677
judgeships (673 Article III judgeships, of which 10 are temporary, and 4 territorial judgeships).

Judicial Nominations and Confirmations During
President Obama’s First Term
This section provides a statistical analysis of President Obama’s nominations to U.S. circuit
courts of appeals and U.S. district courts from January 20, 2009, through January 19, 2013. It
begins with a statistical summary of the confirmation status of President Obama’s circuit and
district court nominees who were nominated during his first term, including identifying the
judicial circuits with the greatest and smallest percentage of circuit and district court judgeships
that were filled by appointees of President Obama at the end of his first term (see “Variation
Across Geographic Circuits in Number and Percentage of Confirmed Nominees”). It concludes
by comparing the number and percentage of circuit and district court judgeships that were vacant
at the start of the Obama presidency with vacancy statistics at the end of his first term (see “U.S.
Circuit and District Court Vacancies at Beginning and End of First Term”).

Confirmation Status of President Obama’s Judicial Nominees
Table 1 provides a statistical summary of the confirmation status of individuals nominated by
President Obama to U.S. circuit and district courts between January 20, 2009, and January 19,

6

This total includes 10 temporary judgeships. See the U.S. Courts website at http://www.uscourts.gov/
JudgesAndJudgeships/AuthorizedJudgeships.aspx.
7
The Eastern District of Oklahoma has 1 judgeship (the smallest number among Article III district courts), while the
Southern District of New York and the Central District of California each have 28 judgeships (the most among Article
III district courts).
8
While American Samoa is an overseas territory of the United States, it does not have a federal district court and has
not been incorporated into a federal judicial district. The High Court of American Samoa is the court of general
jurisdiction for the territory. The High Court has limited jurisdiction to hear cases under particular federal statutes. See
Michael W. Weaver, “The Territory Federal Jurisdiction Forgot: The Question Of Greater Federal Jurisdiction In
American Samoa,” Pacific Rim Law & Policy Journal Association, vol. 17 (March 2008), p. 325.

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2013.9 President Obama, during his first term, nominated 42 persons to circuit court judgeships.
Of the 42, 30 (71.4%) were confirmed by the Senate, and 5 (11.9%) failed to be confirmed after
their nominations either were withdrawn by the President or returned to the President and not
resubmitted to the Senate.10 Additionally, 7 nominees (16.7%) had their nominations returned to
the President at the end of the 112th Congress but have since been renominated during the 113th
Congress (3 of whom, thus far, have been confirmed and 1 whose nomination has since been
withdrawn by the President).11
Table 1. Confirmation Status of President Obama’s Judicial Nominees Who Were
Nominated during the 111th and 112th Congresses
Returned or
Withdrawn (not
resubmitted during
113th Congress)

Confirmed
(during 111th or 112th
Congress)

Returned
(resubmitted during
113th Congress)

Total
Nominees

Number

Percentage

Number

Percentage

Number

Percentage

U.S. Circuit
Courts

42

30

71.4

7

16.7

5

11.9

U.S. District
Courts

173

143

82.7

24

13.9

6

3.5

Source: Internal CRS judicial nominations database.
Notes: This table shows the number and percentage of President Obama’s circuit and district court nominees
who, during the 111th or 112th Congress, received Senate confirmation. This table also shows the number and
percentage of President Obama’s nominees who had their nominations returned to the President at the end of
the 112th Congress and who were renominated during the 113th Congress. The nominations of nominees under
the heading “Returned or Withdrawn (not resubmitted)” were either returned to the President one or more
times in either the 111th or 112th Congress (and not subsequently resubmitted in the 113th Congress) or were
withdrawn by the President.

President Obama, during his first term, nominated 173 individuals to district court judgeships. Of
the 173, 143 (82.7%) were confirmed by the Senate, and 6 (3.5%) failed to be confirmed after
their nominations either were withdrawn by the President or returned to the President and not
9

The most common ways in which a judicial nomination fails to receive Senate confirmation include (1) the full Senate
voting against the nomination; (2) the President withdrawing the nomination, either because (i) the Senate Judiciary
Committee has voted against reporting the nomination to the Senate, (ii) has made clear its intention not to act on the
nomination, or (iii) because the nomination, even if reported, is likely to face substantial opposition on the Senate floor;
(3) the nominee himself or herself has requested that the nomination be withdrawn; and (4) the Senate, without
confirming or rejecting the nomination, returns the nomination to the President under Rule XXXI, paragraph 6 of the
Standing Rules of the Senate after it has adjourned or been in recess for more than 30 days.
10
The 5 unconfirmed nominees were Robert N. Chatigny (nominated to the Second Circuit; nomination returned to the
President), Edward C. DuMont (Federal Circuit; nomination withdrawn by the President), Goodwin Liu (Ninth Circuit;
nomination withdrawn after cloture failed), Victoria F. Nourse (Seventh Circuit; nomination returned), and Steve Six
(Tenth Circuit; nomination returned).
11
William J. Kayatta Jr. was confirmed to the First Circuit Court of Appeals on February 13, 2013; Robert E.
Bacharach was confirmed to the Tenth Circuit Court of Appeals on February 25, 2013; Richard G. Taranto was
confirmed to the U.S. Court of Appeals for the Federal Circuit on March 11, 2013; and Patty Shwartz was confirmed to
the Third Circuit Court of Appeals on April 9, 2013. The nomination of Caitlin J. Halligan to the U.S. Court of Appeals
for the D.C. Circuit was withdrawn by President Obama on March 22, 2013. The nominations of Jill A. Pryor to the
Eleventh Circuit and Srikanth Srinivasan to the D.C. Circuit are, as of this writing, pending before the Senate Judiciary
Committee.

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resubmitted to the Senate.12 Additionally, 24 nominees (13.9%) had their nominations returned to
the President at the end of the 112th Congress but have since been renominated during the 113th
Congress (9 of whom, thus far, have been confirmed).13
In total, 173 (80.5%) of President Obama’s circuit and district nominees were confirmed during
his first term.

Variation Across Geographic Circuits in Number and Percentage of
Confirmed Nominees
President Obama’s confirmed judicial appointees are not distributed uniformly across geographic
circuits. The opportunity to appoint circuit and district court judges to a particular circuit depends
upon the vacancies that exist when a President takes office or that subsequently arise during his
presidency. As a result, there will be variation at any given time both in the number of nominees a
President succeeds in having confirmed across geographic circuits and in the percentage of
judgeships across circuits that are held by appointees of a President.14
At the conclusion of his first term, the greatest number of U.S. appeals court judgeships held by
appointees of President Obama were to the Fourth Circuit (i.e., six confirmed nominees), the
Second Circuit (five), the Ninth Circuit (five), and the Federal Circuit (three). In contrast, during
his first term, no nominees of President Obama were confirmed to either the Eighth Circuit Court
of Appeals15 or to the U.S. Court of Appeals for the D.C. Circuit. President Obama is the first
President in more than 50 years who has served a full four-year term without having a single
nominee confirmed to the appellate court for the D.C. Circuit,16 although he nominated two
individuals to this bench in his first term.17

12

The six unconfirmed nominees were: Louis B. Butler Jr. (nominated to W.WI; nomination returned), Charles B. Day
(MD; nomination withdrawn), Michael C. Green (W.NY; nomination returned), Arvo Mikkanen (N.OK; nomination
returned), V. Natasha Perdew Silas (N.GA; nomination returned), and Linda T. Walker (N.GA; nomination returned).
13
Katherine P. Failla and Pamela Chen were confirmed, respectively, as a U.S. district judge for the Southern District
of New York and for the Eastern District of New York, on March 4, 2013. Andrew P. Gordon was confirmed as a judge
for the District of Nevada on March 11, 2013. On March 23, 2013, Kentanji B. Jackson was confirmed as a judge for
the District of Columbia, Raymond P. Moore was confirmed as a judge for the District of Colorado, and Troy L.
Nunley was confirmed as a judge for the Eastern District of California. On April 15, 2013, Beverly R. O’Connell was
confirmed as a U.S. district judge for the Central District of California. Finally, on April 18, 2013, Derrick K. Watson
was confirmed as a judge for the District of Hawaii and Analisa Torres was confirmed as a judge for the Southern
District of New York. Of the remaining 15 district court nominations that were returned to President Obama at the end
of the 112th Congress and resubmitted at the beginning of the 113th Congress, 1 (the nomination of Elissa F. Cadish as a
judge for the District of Nevada) was withdrawn by the President on March 13, 2013, and 14, as of this writing, remain
pending in the Senate (5 in committee and 9 on the Executive Calendar).
14
The statistics reported in this sub-section are based on the number of active, full-time circuit and district court
judgeships authorized as of 2011 and do not include judges who continue to serve part-time as a result of taking senior
status following retirement.
15
Jane Kelly was confirmed on April 24, 2013 (during President Obama’s second term), to the Eighth Circuit Court of
Appeals.
16
See Bill Mears, “Obama nominee for federal appeals court withdraws,” CNN online, March 23, 2013, at
http://www.cnn.com/2013/03/22/politics/court-nominee-withdraws.
17
President Obama first nominated Caitlin J. Halligan on September 29, 2010, and Srikanth Srinivasan on June 11,
2012.

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President Obama’s confirmed U.S. courts of appeals appointees held the greatest percentage of
judgeships in the same circuits for which he also had the greatest number of confirmed nominees.
Obama appointees, at the end of his first term, held 40.0% of circuit court judgeships on the
Fourth Circuit Court of Appeals, 38.5% on the Second Circuit, 25.0% on the Federal Circuit, and
17.2% on the Ninth Circuit. In addition to the Eighth and D.C. Circuits, the circuits with the
smallest percentage of judgeships held by Obama appointees included the Tenth Circuit Court of
Appeals (8.3%) and the Seventh Circuit (9.1%).
For U.S. district courts, the greatest number of judgeships held by appointees of President Obama
were to district courts located within the Ninth Circuit (27 confirmed district nominees), the
Second Circuit (16), and the Fourth Circuit (15).18 As of January 19, 2013, the two circuits with
the fewest judgeships held by Obama district court appointees were the First Circuit (4) and the
D.C. Circuit (5).
At the conclusion of his first term, the four regional circuits with the greatest percentage of
district court judgeships held by President Obama’s appointees were the D.C. Circuit (33.3% of
district court judgeships), the Eighth Circuit (31.0%), the Seventh Circuit (27.7%), and the Fourth
Circuit (26.8%). Notably, President Obama’s success in having district court nominees confirmed
in the D.C. and Eighth Circuits is in contrast to having no circuit court nominees confirmed,
during his first term, to these same two circuits.

U.S. Circuit and District Court Vacancies at Beginning and End of
First Term
Figure 1 displays the number of U.S. circuit and district court vacancies that existed when
President Obama began his first term on January 20, 2009. For the purposes of this report, these
vacancies are referred to as “inherited vacancies.” The figure also provides the number of
vacancies that existed at the end of the President’s first term (January 19, 2013), broken down by
vacancies for which a nomination was pending in the Senate Judiciary Committee, for which a
nomination was pending on the Senate Executive Calendar, and for which no nomination was
pending.
As Figure 1 indicates, 26 more circuit and district court judgeships were vacant at the end of
President Obama’s first term than when President Obama took office (a total of 81 vacancies on
January 19, 2013, compared with 55 on January 20, 2009).
Of the 81 vacancies that existed at the end of President Obama’s first term, 31 (38.3%) were
vacancies for which a nomination was pending prior to January 19, 2013. Of these 31 vacancies,
10 (32.3%) had a nomination pending on the Executive Calendar, while 21 (67.7%) had a
nomination pending in the Senate Judiciary Committee.
Even if the 10 nominees with nominations pending on the Executive Calendar had been
confirmed prior to the end of President Obama’s first term, total vacancies at the end of President
18

The number and percentage of district court judgeships held by Obama appointees in the Ninth Circuit does not
include Jacqueline H. Nguyen, an Obama U.S. district court appointee confirmed during the 111th Congress, who was
subsequently confirmed during the 112th Congress as a judge on the Ninth Circuit Court of Appeals. Ms. Nguyen is
counted, consequently, as one of President Obama’s circuit court appointees.

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Obama’s first term would still have been greater than at the beginning. Specifically, 16 more
circuit and district court judgeships (rather than 26) would have been vacant at the end of
President Obama’s first term than when President Obama took office.
It should, however, be noted that if the 4 circuit court nominees with nominations pending on the
Executive Calendar had been confirmed prior to the end of the 112th Congress, the number of
circuit court vacancies would have been the same at the end of President Obama’s first term as at
the beginning of it. Confirmation of the 4 circuit nominees would have reduced the end-of-firstterm vacancy total to 13, equal to the 13 vacancies President Obama inherited at the start of his
term.
Figure 1. U.S. Circuit and District Court Judgeships: Number of Vacancies
Inherited by President Obama and Number of Vacancies at End of First Term

Source: Internal CRS judicial nominations database and CRS analysis of data provided by the Administrative
Office of the United States Courts at http://www.uscourts.gov
/JudgesAndJudgeships/JudicialVacancies/CurrentJudicialVacancie s.aspx.
Notes: This figure shows the number of circuit and district court vacancies that existed when President Obama
took office on January 20, 2009 (i.e., “inherited vacancies”). The figure also shows the number of circuit and
district court vacancies on January 19, 2013, broken down by the number of vacancies for which no nomination
was pending prior to the end of President Obama’s first term, the number of vacancies for which a nomination
was pending in committee at the end of the 112th Congress, and the number of vacancies for which a nomination
was pending on the Senate Executive Calendar at the end of the 112th Congress.

Figure 1 also shows that, of the 81 circuit or district court vacancies that existed at the end of
President Obama’s first term, 50 (or 61.7%) were vacancies for which, as of January 19, 2013, the
President had not selected a nominee. These 50 vacancies had been vacant, on average, at the end
of President Obama’s first term, for 452.5 days (or, based on the median,19 for 225 days). A
notable number and percentage of these vacancies, however, occurred relatively late in President
19
The “average” or “mean” is the arithmetic mean (both terms are used interchangeably throughout this report), while
the “median” indicates the middle value for a particular set of numbers. In this case, the middle value for the number of
days nominations had been pending without a nomination prior to the end of President Obama’s first term.

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Obama’s first term. Of the 50 vacancies without a pending nominee at the end of the President’s
first term, 23 (46.0%) did not become vacant until after July 1, 2012.20
Figure 1 also reveals a more pronounced increase, from when President Obama took office to the
end of his first term, in the number of district court vacancies than of circuit court vacancies.
Specifically, while the number of circuit court vacancies at the end of his first term was 4 more
than when President Obama took office on January 20, 2009 (i.e., 17 versus 13), the number of
district court vacancies was 22 more (64 versus 42). In contrast, the number of district court
vacancies under both Presidents Clinton and G.W. Bush declined from the beginning to the end of
their first terms.21
This difference in the increased number of vacancies between circuit and district courts might
reflect, in part, the longer amount of time President Obama took, at least during the first three
years of his first term, to name individuals to district court vacancies than to circuit court
vacancies. According to one study, President Obama took, on average, during his first three years
in office, 399 days to make nominations for district court vacancies versus 230 days to make
nominations for circuit court vacancies.22 The median figures for the time needed by President
Obama to make nominations followed a similar pattern, with a median of 364 days from
appointment opportunity to nomination for district court nominations and 198 days for circuit
court nominations.23
These statistics, however, should not be interpreted to mean that the increase in the number of
circuit and district court vacancies from the time when President Obama took office is solely the
function of the speed with which the President has submitted nominations to the Senate. As
discussed further in the concluding section of this report (see “Factors Influencing the Selection
and Confirmation Process for U.S. Circuit and District Court Nominations”), factors outside an
Administration’s control also influence the number of vacancies that exist at any given time and
the length of time that the vacancies remain unfilled. These include the rate at which judges
depart office and institutional and political factors related to the processing of nominations in the
Senate.

20

The statistics reported in this paragraph were based on CRS analysis of data provided by the federal judiciary at
http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/CurrentJudicialVacancies.aspx.
21
Ibid.
22
See Russell Wheeler, “Judicial Nominations and Confirmations after Three Years – Where Do Things Stand,”
Governance Studies at Brookings, January 13, 2012, at
http://www.brookings.edu/~/media/research/files/papers/2012/1/13%20nominations%20wheeler/0113_nominations_w
heeler.pdf (hereinafter Wheeler, “Judicial Nominations and Confirmations”).
23
Ibid. Wheeler’s calculations, to arrive at the mean and median number of days from vacancy to nomination,
measured the time intervals that, during the Obama presidency, began from the date the departing incumbent
announced his or her intention to leave active service at some future date; the date a vacancy was created if no
announcement was made; or President Obama’s inauguration day (i.e., January 20, 2009) if a vacancy had occurred by
that date.

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Comparison of President Obama with Recent
Predecessors
This section uses various statistical measures to compare the judicial nomination and
confirmation processes at work during the first terms of President Obama and his four immediate
predecessors.24 It first compares the number and percentage of confirmed U.S. circuit and district
court nominees during the first terms from Presidents Reagan to Obama. It then provides, for the
same Presidents, the circuit and district court vacancy rates that existed at the beginning of each
President’s first term with the rates at the end of his first term. The section concludes by
comparing selected features of the Senate judicial confirmation process during the first terms of
the five most recent Presidents. Specifically, it compares, for circuit and district court nominees,
(1) the average and median number of days that elapsed from nomination to confirmation; (2) the
average and median number of days from nomination to committee hearing; and (3) the average
and median number of days from committee report to confirmation.
This report, it should be acknowledged, does not analyze or take a position on the number or
percentage of a President’s judicial nominees that would be appropriate for the Senate to confirm;
on the average (or median) length of time that would be appropriate for, or needed by, the Senate
Judiciary Committee to process judicial nominations or for the Senate to take final action on
them. Similarly, this report does not analyze or take a position on the appropriate amount of time
for an Administration to select nominees for circuit and district court judgeships.

Number and Percentage of Confirmed Judicial Nominees
Table 2 presents, during the first terms of Presidents Reagan through Obama, the total number of
circuit and district court nominees, the total number of nominees confirmed, and the percentage
confirmed. While Presidents sometimes have nominated particular individuals to a court more
than once, this table counts such nominees only once. In other words, it does not account for
multiple nominations of the same individual.
Among the five Presidents during their first terms, the table reveals that President G.H.W. Bush
had the greatest number of circuit court nominees confirmed, 42. President Reagan had the
greatest percentage of circuit nominees confirmed during a first term (86.8%). In contrast,
President Obama had the second-lowest percentage of circuit court nominees confirmed (71.4%)
and is tied with President Clinton for having the lowest number of circuit nominees confirmed,
30.
For district court nominees, Presidents Clinton and G.W. Bush are tied for the greatest number
confirmed during the first term of a presidency (170). President G.W. Bush, however, had the
greatest percentage of district court nominees confirmed during a first term (95.0%). President
Obama, in contrast, had the second-lowest number of district court nominees confirmed (143) and
the second-lowest percentage of district nominees confirmed (82.7%).

24
Statistical measures from the first terms of President Obama and his four immediate predecessors are included in this
section of the report because CRS rarely receives requests for judicial nomination and confirmation statistics for
Presidents prior to Ronald Reagan.

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For circuit and district court nominees, combined, President G.W. Bush, of the five most recent
Presidents, had both the greatest number and percentage of nominees confirmed during his first
term (205 confirmed nominees, representing a confirmation rate of 88.7%). President Clinton had
the second-greatest number of nominees confirmed during his first term (200), while President
Reagan’s nominees had the second-highest confirmation rate (87.2%).
At the end of his first term, President Obama had the second-lowest number of combined circuit
and district court nominees confirmed (173), and the second-lowest confirmation rate (80.5%).25
The President with the lowest number of circuit and district court confirmed in his first term was
Ronald Reagan (163), while President G.H.W. Bush had the lowest percentage of total nominees
confirmed (77.4%).
Table 2. U.S. Circuit and District Court Nominees of Five Most Recent Presidents:
Number Nominated, Number Confirmed, Percentage Confirmed during First Term
U.S. District Courts

U.S. Circuit Courts

Total

Number
Number
Number of Number
%
of
Number
%
of
Number
%
President Nominees Confirmed Confirmed Nominees Confirmed Confirmed Nominees Confirmed Confirmed
Reagan

38

33

86.8

144

130

90.3

G.H.W.
Bush

53

42

79.2

195

150

76.9

Clinton

41

30

73.2

198

170

85.9

52

35

67.3

179

170

95.0

42

30

71.4

173

143

82.7

G.W.
Bush
Obama

182

163

89.6

248

192

77.4

239

200

83.7

231

205

88.7

215

173

80.5

Source: Internal CRS judicial nominations database.
Notes: This table shows, for each of the past five Presidents, the total number of individuals nominated for
circuit and district court judgeships during a President’s first term as well as the number and percentage of
nominees confirmed during his first term. Note that some individuals nominated during the first term of a
President were ultimately confirmed during a President’s second term. These individuals were not included in
the number and percentage of confirmed nominees reported in the table.

The statistics presented in Table 2 include nominees whose nominations were submitted by a
President relatively late in the fourth year of his first term. For the Senate, however, there might
not always be sufficient time in a session to process most of these late nominations prior to
adjourning sine die. Consequently, the percentage of a President’s nominees confirmed during his
first term ordinarily might be greater when relatively late nominations are removed from the
analysis.
25
If the 10 judicial nominees who have, thus far, been confirmed during the 113th Congress are included, President
Obama has made a total of 183 appointments to circuit and district court judgeships. This number, at present, still
places President Obama behind 2 of 3 Presidents since 1933 who have served a single term (or less). President
Obama’s total currently ranks behind Presidents Carter (262) and G.H.W. Bush (191) and ahead of President Kennedy
(122). Note that these numbers reflect the total number of appointments, not judges. Because some judges, for example,
are elevated during any given presidency, they would be counted as two appointments, not one, for that President. This
comparison is based on data provided by the Administrative Office of U.S. Courts (online at http://www.uscourts.gov/
JudgesAndJudgeships/JudgeshipAppointmentsByPresident.aspx) and the internal CRS judicial nominations database.

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The percentage of circuit court nominees, for example, confirmed during President Reagan’s first
term increased from 86.8% to 97.1% when excluding four nominees who were first nominated
after July 1, 1984, and whose nominations were returned to the President at the end of his first
term. Similarly, the percentage of district court nominees during President Obama’s first term
increased from 82.7% to 87.7% when excluding 10 nominees who were first nominated after
November 1, 2012, and whose nominations were returned at the end of the President’s first
term.26

Circuit and District Court Vacancy Rates at Beginning and End of
First Term
The vacancy rate for circuit and district court judgeships (i.e., the percentage of authorized
judgeships that are vacant) varies over the course of a presidency and is affected by the pace at
which a President selects nominees for vacancies as well as the speed by which the Senate
considers the President’s nominees. Table 3 compares, for President Obama and his four most
recent predecessors: (1) the U.S. circuit and district court vacancy rates27 at the beginning of each
President’s first term; (2) the circuit and district court vacancy rates at the end of his first term;28
and (3) the change in circuit and district court vacancy rates from the beginning to the end of each
President’s first term.
Table 3 reveals that, for circuit court vacancy rates during the five Presidents’ first terms, only the
first term of President G.W. Bush saw the vacancy rate decline from the beginning to the end of
the term, decreasing from 14.5% to 8.4%. The circuit court vacancy rate increased the most for
President Reagan, from 3.8% to 15.5%, and the least for President Obama, from 7.3% to 9.5%.
The increase in the vacancy rate following President Reagan’s first term and G.H.W. Bush’s
presidency might be attributable, at least in part, to the creation of new circuit court judgeships
during these Presidents’ first terms. During President Reagan’s first term, for example, the
Federal Courts Improvement Act of 1982 created the Federal Circuit with a total of 12 new
judgeships.29 Additionally, the Bankruptcy Amendments and Federal Judgeship Act of 1984

26

An earlier “cut-off” date was used to identify circuit court nominees whose nominations were made by a President
relatively late in his first term than was used for district court nominees because of the invocation by Senators, in recent
decades, of the “Thurmond rule” on circuit court nominations during presidential election years (which include a
President’s fourth year in office). Specifically, since President Clinton’s fourth year in office in 1996, circuit court
nominations have not usually been acted upon by the full Senate after July 1st during presidential election years. In
contrast, it is not uncommon for the Senate to continue acting upon district court nominations after July 1st during these
same years. See CRS Report R42600, Confirmation of U.S. Circuit and District Court Nominations in Presidential
Election Years, by (name redacted) and (name redacted).
27
The circuit (or district) court vacancy rate on any given date is the percentage of authorized circuit (or district) court
judgeships that are vacant on that date. The rate, or percentage, is calculated by dividing the number of circuit (or
district) court vacancies that exist on a date by the number of authorized circuit (or district) court judgeships existing on
that same date.
28
For this part of the analysis, the end of a President’s term in office is considered January 19, the last full day prior to
a President being inaugurated on January 20.
29
P.L. 97-164 (April 2, 1982).

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created 24 new circuit court judgeships.30 Finally, during President G.H.W. Bush’s first term, 11
new circuit court judgeships were created by the Judicial Improvements Act of 1990.31
As for district court vacancy rates during this period, President G.W. Bush’s first term saw the
greatest decline in the vacancy rate (from 8.3% to 3.6%)—perhaps reflecting the Senate’s
confirmation rate of 95.0% for district court nominees during his first term. The district court
vacancy rate also declined under President Clinton, falling from 14.4% to 10.0%. During
President Obama’s first term, by contrast, the district court vacancy rate increased from the
beginning to the end of his first term, rising from 6.7% to 9.5%.
The district court vacancy rates also increased during the first terms of Presidents Reagan (from
5.7% to 13.3%) and G.H.W. Bush (from 4.7% to 14.4%). However, these increases, as had the
aforementioned increases in circuit vacancy rates, coincided with the creation of new judgeships
during both President Reagan’s and President G.H.W. Bush’s first terms. During President
Reagan’s first term, the Federal Judgeship Act of 1984 created 53 new permanent district court
judgeships. During President G.H.W. Bush’s presidency, the Judicial Improvements Act of 1990
created 61 new permanent district court judgeships.
Table 3. U.S. Circuit and District Court Vacancy Rates of Five Most Recent
Presidents at Beginning and End of First Terms in Office
U.S. Circuit Court Vacancy Rate
Jan. 20 of
first year

Jan. 19 of
fourth
year

Reagan

3.8

G.H.W. Bush

U.S. District Court Vacancy Rate

Change

Jan. 20
of first
year

Jan. 19 of
fourth
year

Change

15.5

+11.7

5.7

13.3

+7.6

6.0

10.1

+4.1

4.7

14.4

+9.7

Clinton

10.1

12.8

+2.7

14.4

10.0

-4.4

G.W. Bush

14.5

8.4

-6.1

8.3

3.6

-4.7

Obama

7.3

9.5

+2.2

6.7

9.5

+2.8

President

Source: Internal CRS judicial vacancies database.
Notes: This table shows, for each of the last five Presidents, the U.S. circuit and district court judgeship vacancy
rates that existed at the beginning of a President’s first term (January 20); the respective vacancy rates that
existed at the end of his first term (January 19); and the change for the respective judgeships from the beginning
to the end of his first term in office.

President Obama, in contrast, was the only White House occupant during this period for whom
the district court vacancy rate increased during a presidential first term unaccompanied by the
creation of new district court judgeships.
That the district court vacancy rate, over time, increased from the beginning to the end of
President Obama’s first term while not increasing during the first terms of his two immediate
predecessors (Presidents Clinton and G.W. Bush) might, in part, be a function of the relative
amounts of time taken by these Presidents to nominate persons to fill district court vacancies. As
30
31

P.L. 98-353 (July 10, 1984).
P.L. 101-650 (December 1, 1990).

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mentioned above, according to one study, President Obama took 399 days, on average, during this
first three years to make such nominations, compared with 366 days, on average, for President
Clinton during his first three years, and 272 days, on average, for President G.W. Bush during his
first three years.32
Additionally, as previously reported by CRS, on February 1 of President Obama’s second and
fourth years in office, there were a greater percentage of district court vacancies for which the
President had not made a nomination (81.7% and 55.2%, respectively) than during the same
points in time during the first terms of Presidents Clinton (72.8% and 41.5%) and G.W. Bush
(48.5% and 13.8%).33
For his part, the speed with which a President submits judicial nominations to the Senate reflects
factors both within an Administration’s control and outside its control.34 These factors are
discussed further in the concluding section (see “Factors Influencing the Selection and
Confirmation Process for U.S. Circuit and District Court Nominations”).

Selected Features of the Senate Confirmation Process
Like other parts of this report, the discussion under this heading is based upon nomination and
confirmation statistics from each President’s first term in office. Additionally, the statistics here
largely account only for those nominees who were confirmed by the Senate during a President’s
first term (thus excluding from the analysis nominees who were never confirmed or who were
later confirmed during a President’s second term).35

Length of Time from Nomination to Confirmation
Figure 2 tracks by President, from Reagan to Obama, the average and median number of days
from nomination to confirmation for all circuit and district court nominees confirmed during a
President’s first term. If a nominee was nominated more than once by a President during his first
term in office, the first date he or she was nominated was used to calculate the days elapsed from
nomination to confirmation.
32

Wheeler, “Judicial Nominations and Confirmations,” p. 5.
See CRS Report R42556, Nominations to U.S. Circuit and District Courts by President Obama During the 111th and
112th Congresses, by (name redacted).
34
In 1993, for example, President Clinton did not send his first district court nominations to the Senate until August 6.
Likely delaying the President’s initial selection of lower court nominees in 1993 was the March 19, 1993,
announcement by Justice Byron R. White of his intention to retire from the Supreme Court when it adjourned for the
summer. President Clinton engaged in a three-month search for Justice White’s successor, announcing, on June 14,
1993, his selection of Ruth Bader Ginsburg as his Supreme Court nominee. For the President, selecting and nominating
a person to fill a vacancy on the Supreme Court evidently took priority over providing the Senate with nominations to
lower court judgeships. The Ginsburg nomination, in turn, was a primary object of attention for the Senate Judiciary
Committee during June and July 1993, and subsequently as well for the Senate, which voted to confirm Justice
Ginsburg on August 3, 1993, four days before the start of its August recess. As it had with the President, the Ginsburg
nomination, for the Judiciary Committee and the Senate as a whole, presumably would have taken priority over lower
court nominations had any been received prior to the Supreme Court nomination.
35
An exception, where statistics include some unconfirmed nominees, is a sub-section that analyzes the length of time
from first nomination to first hearing. Included in that analysis are those nominees who were nominated during a
President’s first term and who also had a hearing during that President’s first term, regardless of whether their
nomination was approved by the Senate.
33

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U.S. Circuit Court Nominees
Overall, President G.W. Bush’s circuit court nominees who were confirmed during his first term
waited, on average, the longest period of time from first nomination to confirmation (277.0 days).
President Obama’s nominees waited, on average, the second-longest period of time (240.2 days)
followed by the circuit court nominees of Presidents Clinton (127.1 days), G.H.W. Bush (103.7
days), and Reagan (45.5 days).
While President G.W. Bush’s circuit court nominees waited, on average, the longest period of
time from nomination to confirmation, President Obama’s circuit court nominees had the longest
median wait time from first nomination to confirmation (225.5 days).36 This statistic shows that
half of the circuit court nominees who were confirmed during President Obama’s first term
waited more than 225.5 days from nomination to confirmation, while the other half waited less
than 225.5 days.
The circuit court nominees who were confirmed during President G.W. Bush’s first term had a
median wait time of 216.0 days followed, in decreasing order, by the circuit court nominees of
President Clinton (102.5 days), G.H.W. Bush (85.5 days), and Reagan (28.0 days).
Figure 2. U.S. Circuit and District Court Nominees of Five Most Recent
Presidents: Mean and Median Number of Days from Nomination to
Confirmation for Nominees During First Term

Source: Internal CRS judicial nominations database.
Notes: This figure shows, for each of the past five Presidents, the mean and median number of days from first
nomination to confirmation for all U.S. circuit and district court nominees who were confirmed during a
President’s first term.

36

Note that the median, or middle value for the nominees, is less affected by outliers or extreme cases, i.e. nominees
whose elapsed time from first nomination to confirmation was unusually long or short. Consequently, the median might
be a better indicator, generally, for indicating the elapsed time from nomination to confirmation experienced, typically,
by a President’s nominees.

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U.S. District Court Nominees
As for district court nominees, President Obama’s confirmed nominees waited, on average, 221.8
days from nomination to confirmation. President G.W. Bush’s district court nominees waited, on
average, 156.2 days. The district court nominees confirmed during President Clinton’s first term
waited an average of 92.5 days while the nominees of Presidents G.H.W. Bush and Reagan waited
103.8 and 34.7 days, respectively.
The median waiting times from nomination to confirmation for district court nominees ranged
from a high of 215.0 days during President Obama’s first term to a low of 28.0 days during
President Reagan’s first term. The median waiting times from nomination to confirmation for the
district court nominees for other Presidents during this period were 137.5 days (G.W. Bush), 93.0
days (G.H.W. Bush), and 84.0 days (Clinton).
President Obama is the only President during this period for whom, during his first term, U.S.
circuit and district court nominees waited, both in terms of average and median number of days,
more than half of a calendar year (i.e., more than 182 days) to be confirmed after being
nominated.
The length of time it takes a President’s judicial nominees, once nominated, to be confirmed by
the Senate depends (in part) on the length of time nominees wait for a committee hearing and,
once reported by the Senate Judiciary Committee, the length of time nominations remain on the
Executive Calendar prior to being considered by the full Senate. These stages of the confirmation
process are discussed next.

Length of Time from Nomination to Committee Hearing
Figure 3 tracks, for Presidents Reagan to Obama, the mean and median number of days from first
nomination to first committee hearing for all circuit and district court nominees who received
hearings during a President’s first term.
All nominees who received hearings during a President’s first term were included in the
calculations, regardless of whether they were eventually confirmed or their nomination was
returned, withdrawn, or rejected by the Senate. In cases where a nominee received a hearing only
after being renominated, the waiting time was calculated from the date of the first nomination to a
committee hearing. Additionally, when nominees received more than one committee hearing, the
statistics used to generate Figure 3 measure only the length of time from the date a nominee was
first nominated to the date of his or her first hearing.

U.S. Circuit Court Nominees
Figure 3 shows that circuit court nominees of President G.W. Bush waited more days to receive a
hearing than did the nominees of the other four Presidents.37 The mean and median number of
37

Despite the relatively longer wait times for circuit court nominees to receive a hearing during President G.W. Bush’s
first term, a greater number of circuit court nominees received hearings during President G.W. Bush’s first term than
during the first terms of the other Presidents. Specifically, 50 circuit court nominees who were nominated during
President G.W. Bush’s first term also had hearings during his first term compared with 44 circuit court nominees
during President G.H.W. Bush’s first term, 38 during President Obama’s, and 36 during both President Clinton’s and
(continued...)

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days for a circuit court nominee to receive a committee hearing after being nominated ranged
from a low of 28.7 and 16.5 days, respectively, during the Reagan presidency to 274.6 and 172.5
days, respectively, for the G.W. Bush presidency.38
President Clinton’s circuit court nominees waited an average of 89.2 days to receive hearings
(although the median waiting time was slightly lower, i.e., 85.0 days). Similarly, as Figure 3
shows, President G.H.W. Bush’s circuit court nominees waited an average of 88.7 days to receive
hearings (with a median waiting time of 68.0 days).
Although a relatively low number and percentage of President Obama’s circuit court nominees
were confirmed in his first term,39 his circuit court nominees received hearings relatively quickly.
His circuit court nominees waited, on average, less time from first nomination to first hearing,
69.6 days, than the circuit nominees of Presidents G.H.W. Bush, Clinton, and G.W. Bush. Only
President Reagan’s circuit nominees waited, on average, less time from first nomination to first
hearing (28.7 days).
Figure 3. U.S. Circuit and District Court Nominees of Five Most Recent
Presidents: Mean and Median Number of Days from Nomination to Hearing for
Nominees during First Term

Source: Internal CRS judicial nominations database.
Notes: This figure shows, for each of the last five Presidents, the mean and median number of days from first
nomination to first hearing for all U.S. circuit and district court nominees who received hearings during a
President’s first term.

(...continued)
Reagan’s first terms. Source: Internal CRS judicial nominations database.
38
The calculations for the G.W. Bush nominees from first nomination to first hearing included relatively long waiting
periods for nominees such as Priscilla R. Owen (waiting 440 days from first nomination to first hearing), Deborah L.
Cook (630 days), Jeffrey S. Sutton (630 days), Richard A. Griffin (721 days), and David W. McKeague (951 days).
39
As discussed above, President Obama, compared with his four most recent predecessors, tied with President Clinton
for the least number of circuit court nominees confirmed during a first term, and had the second-smallest percentage of
circuit court nominees confirmed (see “Number and Percentage of Confirmed Judicial Nominees”).

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U.S. District Court Nominees
Figure 3 shows, by presidency, less striking differences in the amount of time district court
nominees, compared with circuit court nominees, waited for hearings. The mean and median
number of days from first nomination to first hearing for district court nominees ranged from a
low of 18.6 and 15.0 days, respectively, during the Reagan presidency to 99.8 and 82.5 days,
respectively, during the G.W. Bush presidency.
The average waiting time, from first nomination to first hearing, for President Obama’s district
court nominees during his first term, 80.2 days, is close to the average waiting time experienced
by district court nominees during the G.H.W. Bush presidency, 83.4 days. District court nominees
who had hearings during President Clinton’s first term waited, on average, 70.2 days from first
being nominated to receiving their first hearing.
Finally, although the median waiting time from first nomination to first hearing during President
Obama’s first term (70.0 days) is less than the median waiting time during the G.W. Bush
presidency (82.5 days), it is higher than the median waiting times for district court nominees
during the G.H.W. Bush and Clinton presidencies (65.0 and 61.5 days, respectively) and more
than 4.5 times higher than the median waiting time of 15.0 days for President Reagan’s district
court nominees.

Length of Time from Committee Report to Confirmation
Figure 4 shows, by presidency (from Reagan to Obama), the mean and median number of days
from first committee report to confirmation for all circuit and district court nominees who were
confirmed during a President’s first term. In effect, the figure shows the mean and median
number of days nominees waited on the Executive Calendar prior to being confirmed by the
Senate.
These calculations include days elapsed for nominations which were reported out of committee
only to be returned to the President, subsequently resubmitted by the President, reported again by
the Judiciary Committee, and then confirmed by the Senate.40 Figure 4 shows that, in general,
both the mean and median waiting time between committee report and confirmation increased
from presidency to presidency, starting with the circuit and district court nominees of President
G.H.W. Bush.

U.S. Circuit Court Nominees
For confirmed circuit court nominees, the fewest days, on average, that elapsed from first
committee report to confirmation occurred during the G.H.W. Bush presidency (7.8 days). The
mean number of days from first committee report to confirmation for nominees who were
confirmed during a President’s first term increased from 7.8 days during the G.H.W. Bush
40

For example, Susan L. Carney was nominated by President Obama to the Second Circuit Court of Appeals. Her
nomination was initially reported out of committee on December 1, 2010, during the 111th Congress. Her nomination
was returned to the President on December 22, 2010, and resubmitted on January 5, 2011. After being reported by the
Judiciary Committee again on February 17, 2011, Ms. Carney’s second nomination was confirmed on May 17, 2011,
during the 112th Congress. Consequently, the dates used for calculating the number of days between Ms. Carney’s
nomination being reported out of committee and her confirmation are December 1, 2010, and May 17, 2011.

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presidency to 18.5 days during President Clinton’s first four years in office. The average waiting
time for circuit court nominees from first committee report to confirmation increased further,
from President Clinton’s first term to President G.W. Bush’s first term, to 35.3 days, only to
increase by over 100 days during President Obama’s first term, to an average of 138.5 days.
The median number of days from first committee report to confirmation also increased after
President G.H.W. Bush but remained relatively short during President Clinton’s and G.W. Bush’s
first terms. The median line graph for circuit court nominees in Figure 4 shows that roughly half
of President Clinton’s 30 confirmed circuit court nominees (during his first term) were confirmed
within 6.5 days of their nominations being reported out of committee. Likewise, roughly half of
President G.W. Bush’s 35 confirmed circuit court nominees (during his first term) were confirmed
within 18 days of their nominations being reported.
In contrast, President Obama, during his first term, had no circuit court nominees confirmed
within 25 days of first being reported out of committee.41 Instead, the median number of days for
President Obama’s 30 confirmed circuit court nominees is 131.5, 7.3 times greater than the
median number of 18 days for the 35 confirmed circuit nominees of his immediate predecessor,
President G.W. Bush.
Figure 4. U.S. Circuit and District Court Nominees of Five Most Recent
Presidents: Mean and Median Number of Days from Committee Report to
Confirmation for Nominees during First Term

Source: Internal CRS judicial nominations database.
Notes: This figure shows, for each of the last five Presidents, the mean and median number of days from first
committee report to confirmation for all U.S. circuit and district court nominees who were confirmed during a
President’s first term.

The mean number of days that elapsed from first committee report to confirmation for circuit
court nominees during each President’s first term was greater than the median number of days
41

Of U.S. circuit court nominees confirmed during President Obama’s first term, Jimmie V. Reyna, nominated by the
President to the U.S. Court of Appeals for the Federal Circuit, waited the least amount of time (25 days) from
committee report to confirmation. His nomination was reported by the Judiciary Committee on March 10, 2011, and
approved by the Senate on April 4, 2011.

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experienced by these nominees from the report to confirmation stage. These differences reflect
the fact that many noncontroversial nominees were confirmed relatively quickly after their
nominations were reported out of committee (thus pushing down the median figures) while a
smaller number of cases stayed on the Senate Executive Calendar for relatively longer periods of
time.42 These outliers (the nominees experiencing relatively lengthy waits between first report and
confirmation) had a greater statistical effect on the average number of days between first report
and confirmation than on the median number of days.

U.S. District Court Nominees
As with President G.H.W. Bush’s confirmed circuit court nominees, district court nominees
during his presidency waited, on average, a shorter time from first committee report to
confirmation (4.6 days) than did the district nominees confirmed during the first terms of the four
other Presidents. The average number of days increased to 15.5 days during President Clinton’s
first term and to 34.9 days during President G.W. Bush’s first term. During the first term of the
Obama presidency, the average number of days increased further, to 98.5 days, as 61 (42.7%) of
President Obama’s 143 confirmed district court nominees waited at least 100 days from first
committee report to confirmation.43
As Figure 4 shows, the median number of days between first committee report and confirmation
of district court nominees by presidency also increased during this period, starting with the
nominees of President G.H.W. Bush. From the low median of 1.0 days for nominees during the
G.H.W. Bush presidency, the median increased to 5.0 days for President Clinton’s district court
nominees confirmed during his first term. It then increased to 18 days for district court nominees
confirmed during President G.W. Bush’s first four years in office, and increased further, to 91
days, for nominees confirmed during President Obama’s first term.

U.S. Circuit and District Court Nominees Unopposed in Committee and on the
Floor
A notable change from previous Congresses to the 111th and 112th Congresses (i.e., during
President Obama’s first term) was an increase generally in waiting times from committee report
to confirmation experienced by circuit and district court nominees. The longer waiting times on
the Executive Calendar included the waiting times for nominees whose nominations were
unopposed when reported out of the Senate Judiciary Committee and, ultimately, when approved
by the full Senate.
For the purposes of this report, nominees described as “unopposed” were those whose
nominations received zero “nay” votes when reported out of the Judiciary Committee and,

42
Examples of nominees who waited relatively long periods of time on the Executive Calendar include John M.
Rogers, a Sixth Circuit Court of Appeals nominee of President G.W. Bush, who was first reported out of committee on
July 11, 2002, and not approved by the Senate until November 14, 2002. Another example was A. Wallace Tashima, a
nominee of President Clinton’s to the Ninth Circuit Court of Appeals, whose nomination was first reported out of
committee on July 28, 1995, and not approved until January 2, 1996.
43
These 61 nominees included Ellen L. Hollander (waiting 191 days), Susan R. Nelson (190 days), John E. Dowdell
(187 days), Paul W. Grimm (179 days), Malachy E. Mannion (155 days), and Lorna G. Schofield (154 days).

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additionally, received zero “nay” votes when approved by the Senate.44 Voice votes by the
Judiciary Committee or the full Senate approving judicial nominations were considered votes for
which a nominee received zero nay votes.45
Table 4 reports, for Presidents Clinton to Obama, the number (and percentage) of nominees
confirmed during each President’s first term whose nominations were reported out of committee
and approved by the Senate without receiving any nay votes as well as the average and median
number of days such nominees waited to be confirmed after their nominations were placed on the
Executive Calendar. Presidents Reagan and G.H.W. Bush are omitted from this part of the
analysis because over 95% of both their circuit and district court nominees’ nominations were
reported out of committee with zero nay votes (or by voice vote) and were subsequently approved
by the Senate with zero nay votes (or by voice vote).
Table 4. U.S. Circuit and District Court Nominees of Three Most Recent Presidents:
Average and Median Number of Days from Committee Report to Confirmation for
Nominees Whose Nominations Were Unopposed in Committee and on the Floor
U.S. Circuit Courts
Number (%) of
Confirmed
Nominees
Unopposed

Clinton
G.W. Bush
Obama

President

U.S. District Courts

Average (Median)
Number of Days

Number (%) of
Confirmed
Nominees
Unopposed

Average
(Median)
Number of Days

28 (93.3)

16.9 (5.5)

170 (100)

15.5 (5.0)

23 (65.7)

29.3 (14.0)

165 (97.1)

32.4 (18.0)

16 (53.3)

124.7 (130.5)

104 (72.7)

89.0 (88.0)

Source: Internal CRS judicial nominations database.
Notes: This table shows, for each of the past three Presidents, the mean and median number of days from first
committee report to confirmation for U.S. circuit and district court nominees, confirmed during a President’s first
term, who received zero “nay” votes when reported out of the Judiciary Committee and when confirmed by the
Senate. For the purposes of this report, voice votes held on a nominee’s nomination by either the committee or
the full Senate are considered votes for which a nominee received zero “nay” votes.

44

Table 4 shows that, when comparing the U.S. circuit and district court nominees confirmed during the first terms
of Presidents Clinton, G.W. Bush, and Obama, a smaller percentage of President Obama’s nominees were unopposed
by at least one Senator when reported out of committee or confirmed by the full Senate. Specifically, 53.3% of
President Obama’s circuit court nominees had zero nay votes cast against them in committee and, later, on the floor
(compared with 93.3% of President Clinton’s nominees and 65.7% of President G.W. Bush’s nominees). As for district
court nominees confirmed during each President’s first term, 72.7% of President Obama’s nominees had zero nay votes
cast against them in committee and on the floor (compared with 100% of President Clinton’s nominees and 97.1% of
President G.W. Bush’s nominees).
45
So, for example, circuit court nominees of President Obama whose nominations were included in the calculations are
Scott M. Matheson Jr. (nominated to the Tenth Circuit, reported out of committee by voice vote and confirmed by
voice vote), Raymond J. Lohier Jr., (Second Circuit, reported out of committee by voice vote and confirmed 92-0), and
Albert Diaz (Fourth Circuit, reported out of committee 19-0 and confirmed by voice vote). Examples of President
Obama’s district court nominees included in the calculations are Jesus G. Bernal (nominated to the Central District of
California, reported out of committee by voice vote and confirmed by voice vote), Catherine C. Eagles (Middle District
of North Carolina, reported out of committee by voice vote and confirmed by voice vote), and Kimberly J. Mueller
(Eastern District of California, reported out of committee by voice vote and confirmed by voice vote).

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Table 4 shows that, for circuit court nominees who had zero nay votes cast against their
nominations, the average and median number of days from committee report to confirmation was
greatest during President Obama’s first term (i.e., greatest during the 111th and 112th Congresses).
Such nominees during President Obama’s first term waited, on average, for 124.7 days on the
Executive Calendar prior to being confirmed (compared with 16.9 days during President
Clinton’s first term and 29.3 days during President G.W. Bush’s first term). The median number
of days followed a similar pattern, ranging from a high of 130.5 days during President Obama’s
first term to a low of 5.5 days during President Clinton’s first term.
For district court nominees who had zero nay votes cast against their nominations (in committee
and on the floor), the average and median number of days from committee report to confirmation
was also greatest during President Obama’s first term. Such nominees waited, on average, 89
days to be confirmed after being reported, while district court nominees during President
Clinton’s first term waited 15.5 days and those confirmed during President G.W. Bush’s first term
waited 32.4 days. Similarly, the median number of days from committee report confirmation
ranged from a high of 88 days during President Obama’s first term to a low of 5 days during
President Clinton’s first term.

Factors Influencing the Selection and Confirmation
Process for U.S. Circuit and District Court
Nominations
This final section identifies selected factors that may influence various statistical aspects of the
lower court appointment process46 and variation in these statistics across presidencies.
The factors are organized and discussed in the approximate order in which they influence the
selection and confirmation process from its initial to final stages from (1) the appointment
opportunities a President has during his tenure, to (2) the process used by an Administration for
identifying, vetting, and selecting judicial nominees, to (3) the processing of a President’s judicial
nominations by the Senate.
The factors discussed below do not constitute an exhaustive list of independent variables that
affect confirmation rates, and are not always readily quantifiable in terms of how they affect the
selection and confirmation process for judicial nominees.

Appointment Opportunities
Opportunities for a President to make circuit and district court appointments arise when
judgeships are vacant or are scheduled to become vacant. Various factors influence the number of
such opportunities a President will have during his tenure in office. One such factor, at the start of
a presidency, is the number of judicial vacancies already in existence (i.e., the judicial vacancies a
46

Such aspects, discussed above in this report, include how many nominations a President makes to fill judgeships
during his tenure, how long a President takes to select nominees, how quickly the Senate processes a President’s
nominations, and how many and what percentage of a President’s judicial nominations are ultimately confirmed (see,
for example, “Number and Percentage of Confirmed Judicial Nominees”).

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President inherits when taking office). The number of inherited vacancies, in turn, is influenced
by various factors. These include the frequency with which judicial departures occurred and new
judgeships were statutorily created in the years or months immediately prior to a new presidency;
the extent to which the outgoing President, during this same period, made nominations to fill
judicial vacancies; and the rate at which the Senate confirmed these nominations before the new
President took office.
A large number of judicial vacancies created before the start of a new presidency might or might
not result in many appointment opportunities for the incoming President. Much would depend on
how prompt the previous President was in making nominations to fill newly created judicial
vacancies and on how willing the Senate was to confirm those nominations. The different rate, for
instance, at which the Senate confirmed district court nominations immediately prior to the G.W.
Bush and Obama presidencies was one factor in how many district court appointment
opportunities each President inherited upon taking office. During the presidential election year of
2000, 56 district court nominations were pending in the Senate, of which 31 (55.4%) were
confirmed. In contrast, during the presidential election year of 2008, 37 district court nominations
were pending in the Senate, of which 24 (64.9%) were confirmed. This variation contributed to
differences in the number of appointment opportunities for Presidents G.W. Bush and Obama.
Legislation creating new judgeships might also provide a new President with the opportunity to
appoint a greater number of judges than he might have otherwise inherited. Legislation
substantially increasing the number of authorized judgeships was enacted in 1978 (Omnibus
Judgeship Act, P.L. 95-486); 1984 (Bankruptcy Amendments and Federal Judgeship Act, P.L. 98353); and 1990 (Federal Judgeship Act, P.L. 101-650).47 The large number of district court
vacancies, for example, inherited by President Clinton contributed, in turn, to the relatively large
number of district court confirmations during his presidency. The large number of district court
vacancies inherited by President Clinton was, in part, the result of 74 new district court
judgeships created by the Federal Judgeship Act of 1990.
Over the course of a presidency, opportunities for a President to make circuit and district court
appointments continue to be affected by the rate at which judges depart office (by taking senior
status, retiring, resigning, or dying). During some presidencies, substantial new judicial
appointment opportunities also have arisen because of the statutory creation of new circuit and
district court judgeships. Both factors—judicial departures and the statutory creation of new
judgeships—can, throughout a President’s tenure, affect the number of persons nominated by the
President and the number confirmed by the Senate.48
For example, a study found that, largely as a result of judges retiring from full-time service on the
bench, President Obama was confronted during his first three years in office with more judicial
vacancies than his two immediate predecessors:

47
The appointment opportunities created by the 1984 and 1990 Acts are discussed further in the text above under the
heading “Circuit and District Court Vacancy Rates at Beginning and End of First Term.” See also CRS Report R41942,
Vacancies on Article III District and Circuit Courts, 1977-2011: Data, Causes, and Implications, by (name redacte
d).
48
President Reagan, for example, early in his second term eclipsed the total number of judicial appointments made by
President Carter as a result, in part, of the enactment of the Bankruptcy Amendments and Federal Judgeship Act of
1984. Nadine Cohodas, “Conservatives Pressing to Reshape Judiciary,” CQ Weekly, vol. 43, Sept. 7, 1985, p. 1759.

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... 92 judges took senior status in the first three years of the Obama administration compared
to 72 and 70 in the Clinton and Bush administrations’ first three years.... Had district judges
taken senior status in Obama’s first three years at the same rate they did under Clinton or
Bush, there would have been almost no increase in vacancies.... 49

The Selection of Nominees by a President
The “hallmarks of the modern presidential role in judicial appointments are the selection, vetting,
and evaluation of federal judicial nominees.”50 A variety of factors can affect how long it takes a
President to select, vet, and evaluate nominees to fill judicial vacancies. These factors include
how many individuals are involved in identifying and vetting potential nominees, the specific
selection criteria a President desires to emphasize in identifying nominees, whether a Supreme
Court vacancy occurs, and, if so, the resources devoted to filling that vacancy.51 A vacancy on the
Supreme Court, for example, occurred early in both the Clinton and Obama Administrations, and
in both instances, while the Administrations’ searches were underway for a Supreme Court
nominee, the Presidents sent few lower court nominations to the Senate.
The level of consultation between a President and a nominee’s home state Senators also can
influence the President’s pace in selecting nominees for judicial vacancies. Home state Senators
traditionally play an important role in the selection of district and, to a lesser extent, circuit court
judges. The pace might be slowed by communication or other difficulties between the President
and those Senators who represent states with vacant federal judgeships. Additionally, if the home
state Senators are themselves slow in recommending a candidate, or if they and the President
cannot agree on a suitable candidate, the nomination of an individual to fill a vacant judgeship
may be delayed.52
Another factor affecting a President’s pace in selecting judicial nominees is the degree of priority
he attaches to the process. According to one account, for example, judicial selection may not have
been a priority for the Obama Administration during the 111th Congress. “The surest key to
understanding the politics, processes, and outcomes of the Obama judicial selection record in the
111th Congress,” according to the account, is “the recognition that judges were not seen as a
priority by those closest to the President. Judicial selection was not a major focal point in the
administration’s legislatively driven domestic policy agenda, nor was it seen as a ‘legacy’
issue.”53
Finally, the speed at which a President selects nominees might be influenced by the length of his
Administration’s vetting process. One recent study, for example, found that the time from
vacancy to nomination during the first 14 months of the Obama Administration was longer than at

49

Wheeler, “Judicial Nominations and Confirmations,” p. 2.
Lisa T. McElroy and John Cannan, “Obama’s second term and the federal courts,” Judicature, vol. 96, no. 3,
November/December 2012, p. 99 (hereafter McElroy and Cannon, “Obama’s second term and the federal courts”).
51
See, for example, Sheldon Goldman, Elliot Slotnick, and Sara Schiavoni, “Obama’s Judiciary at Midterm,”
Judicature, vol. 94, no. 6, May-June 2011, pp. 265, 279, 288-291 (hereafter Goldman, “Obama’s Judiciary at
Midterm”).
52
For more information on the role of home state Senators, see CRS Report RL34405, Role of Home State Senators in
the Selection of Lower Federal Court Judges, by (name redacted).
53
Goldman, “Obama’s Judiciary at Midterm,” p. 272.
50

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the same point in the G.W. Bush Administration, especially for circuit court nominees.54 The
greater time for President Obama to submit nominees, the study said, was likely due in part to the
pre-nomination candidate vetting by the American Bar Association’s (ABA’s) Standing
Committee on the Federal Judiciary. The G.W. Bush Administration, the study noted, chose not to
have its judicial candidates rated by the ABA committee (prior to submitting them to Congress).
By contrast, the Obama Administration “brought the committee, and thus the additional 30 to 45
days typically consumed by its investigations, back into the pre-nomination stage.”55

The Processing of Judicial Nominations by the Senate
As in the nominee selection stage, the processing of judicial nominations by the Senate from first
nomination to final Senate action is also affected by many institutional and political factors.
Various studies, for example, have concluded that how long lower federal court nominees wait in
the Senate confirmation process, from first nomination to final action, is affected by such factors
as the extent of ideological differences between the President and the opposite party in the Senate,
or of interest group opposition to certain nominees. Other factors cited have been whether
nominees had “champions” on the Senate Judiciary Committee, the point in a session when
nominations arrived in the Senate, and the kind of ratings given nominees by the ABA’s Standing
Committee on the Federal Judiciary.56 Some of these factors might also contribute to other
features of the confirmation process discussed in this report, for example, whether a nominee is
ultimately confirmed, and, if so, whether he or she is confirmed by roll call vote rather than voice
vote.
The presence or absence of “divided government” (with the President and Senate majority of
opposite political parties) also might influence the processing of judicial nominations by the
Senate. One study concludes, however, that whether the President and Senate majority are of the
same party or not, “presidents continue to select judges according to the same criteria and the
Senate confirms or does not confirm nominations according to the same criteria.”57 Divided
government, though, may affect the procedural strategies used to oppose a President’s nominees.
It has been suggested, for example, that Senators “may rely on certain types of ... tactics during
the confirmation process more or less depending on” whether the party controlling the presidency
is also the majority party in the Senate.58
54

Russell Wheeler, “Judicial Nominations in the First Fourteen Months of the Obama and Bush Administrations,”
Governance Studies at Brookings, April 7, 2010, p. 2, at
http://www.brookings.edu/~/media/research/files/papers/2010/4/07%20judicial%20nominations%20wheeler/0407_judi
cial_nominations_wheeler.pdf.
55
Ibid.
56
See Lauren Cohen Bell, “Senatorial Discourtesy: The Senate’s Uses of Delay to Shape the Federal Judiciary,”
Political Research Quarterly, vol. 55 (September 2002), pp. 589-607; Sarah A. Binder and Forrest Maltzmann,
“Senatorial Delay in Confirming Federal Judges, 1947-1998,” American Journal of Political Science, vol. 46 (January
2002), pp. 190-199; Wendy L. Martinek, Mark Kemper, and Steven R. Van Winkle, “To Advise and Consent: The
Senate and Lower Federal Court Nominations, 1977-1998,” Journal of Politics, vol. 64 (May 2002), pp. 337-361; and
Nancy Scherer, Brandon L. Bartels, and Amy Steigerwalt, “Sounding the Fire Alarm: The Role of Interest Groups in
the Lower Federal Court Confirmation Process,” Journal of Politics, vol. 70, no. 4 (2008), pp. 1026-1039.
57
Nancy Scherer, Scoring Points: Politicians, Activists, and the Lower Federal Court Appointment Process (Stanford,
CA: Stanford University Press, 2005), p.191.
58
Ibid. Scherer elaborated that, if the majority party in the Senate also holds the White House, filibusters by Senators
belonging to the minority party become more prevalent, whereas blue-slip vetoes and other delaying tactics are more
common during divided government.

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Some factors might influence how quickly judicial nominations are processed at the committee
level but not on the floor (and vice versa). For example, the role of the ABA’s Standing
Committee on the Federal Judiciary in evaluating judicial candidates may be seen as a factor in
the time that a circuit or district court nomination is pending in the Judiciary Committee (but not
in the time that a reported nomination is pending on the Senate Executive Calendar). If the ABA
committee’s role is (as it usually has been over the decades) to evaluate judicial candidates before
the President selects a nominee, then the ABA’s evaluation does not add to the time between
when the President makes a nomination and the Senate Judiciary Committee reports it. If,
however, the ABA’s role is (as it was during the G.W. Bush presidency) to evaluate only after a
person has been nominated, then the time taken for that evaluation will add to the total time that
the nomination is pending in the Judiciary Committee.59
Another factor that affects the length of time it takes the Judiciary Committee to process a judicial
nomination is the amount of information on a nominee that Senators and their staff review prior
to holding hearings or reporting a nomination. Additionally, any committee member can request
that a vote on a nomination be postponed for one week or until the next committee meeting,
whichever is later. Consequently, final committee action on some nominations might be delayed
when a recess or adjournment occurs.60
Once a nomination has been reported from committee, the time taken until final Senate action
might be influenced by political or other factors not present (or minimally so) at the committee
level. Even if a nominee is noncontroversial and received bipartisan support from the committee,
significant delays in filling a judicial vacancy might occur when a judicial nomination, after
having been placed on the Executive Calendar, is blocked for one reason or another from floor
consideration by Senators through the use of “holds,” or objections to unanimous consent
requests.61
Finally, another factor that might affect the processing of judicial nominations by the Senate (and,
thus, judicial confirmation statistics) is the blue-slip policy of the Senate Judiciary Committee, as
set by its chair. Under this policy, which dates back to at least 1917, the committee chair seeks the
assessment of Senators regarding various nominations for offices related to their states, including
those for U.S. district court judgeships, U.S. circuit court judgeships, U.S. attorneys, and U.S.
marshals.
In practice, the chair sends a blue-colored form to both home state Senators regarding judicial
nominations related to their state. If a home state Senator has no objection to a nominee, the blue
59
Hence, the increase from the Clinton presidency to the G.W. Bush presidency in the mean and median number of
days from first nomination to first hearing for circuit and district court nominees might be regarded as attributable, in
part, to the waiting time during the Bush presidency between the time that the Judiciary Committee received a
nomination and subsequently received the ABA’s report on a nominee. A Brookings Institution report noted, however,
that the “much longer wait time for Bush’s circuit nominees to get hearings ... is explained only partly by the timing of
the ABA investigations. (Thirteen Bush nominees got hearings in 2003—after Republicans took control of the Senate;
five of those 13 had first been nominated in 2001 or 2002, creating initial-nomination-to-hearing times mostly in the
600 day range).” Wheeler, “Judicial Nominations and Confirmations,” p. 7.
60
McElroy and Cannon, “Obama’s second term and the federal courts,” p. 101.
61
See CRS Report 98-712, “Holds” in the Senate, by (name redacted). See also Thomas E. Mann and Norman J.
Ornstein, It’s Even Worse Than It Looks—How the American Constitutional System Collided With the New Politics of
Extremism (New York, NY: Basic Books, 2012), p. 92. Mann and Ornstein argue that “Senators have increasingly used
holds, their ability to block consideration of a nominee indefinitely, as a broader partisan weapon to keep presidents
from filling key positions, including many qualified and usually noncontroversial nominees.”

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slip is returned to the chair with a positive response. If a Senator, however, has misgivings about
the nominee and wants to stop or slow committee action, he or she can decide not to return the
blue slip, delay returning it, or return it with a negative response. Most chairs of the Judiciary
Committee have required a return of positive blue slips by both a state’s Senators before allowing
consideration of a nomination.62
It should be noted, however, that the return of positive blue slips by both home state Senators
does not always lead to a relatively speedy confirmation. During President Obama’s first term, for
example, circuit and district court nominations were reported by the Judiciary Committee only
after home state Senators returned positive blue slips for the nominations. Nevertheless, the
average (and median) time during which circuit and district court nominations waited on the
Senate Executive Calendar before being confirmed, as discussed above, reached historically high
levels (see “Length of Time from Committee Report to Confirmation”).63
A new standing order in the 113th Congress, however, might serve to facilitate negotiations
arranging for floor consideration of district court nominations (circuit court nominations are not
affected). Under a new procedure in effect for just this Congress, the Senate could move more
quickly to final action on district court nominations supported by at least three-fifths of the
Senate. Specifically, if cloture is invoked on a district court nomination in accordance with Rule
XXII of the Senate, post-cloture consideration is reduced from a maximum of 30 hours to 2
hours. Generally, district court nominations are considered pursuant to unanimous consent
agreements, in part because of the greater amount of time necessary to consider them through the
cloture process in the absence of unanimous consent. The majority leader, when the new standing
order was approved, indicated that the intent is to continue to negotiate unanimous consent
agreements for the consideration of nominations.64 The ability to more quickly vote on district
court nominations in the absence of unanimous consent, however, might facilitate unanimous
consent negotiations and, therefore, reduce the waiting time from committee report to final Senate
action for such nominations during the 113th Congress.65

62
See CRS Report RL 34405, Role of Home State Senators in the Selection of Lower Federal Court Judges, by (name
redacted).
63
See, again, Figures 4 and 5. A specific example includes David Hamilton, an early Obama nominee who was
eventually confirmed to the Seventh Circuit Court of Appeals. Mr. Hamilton had the support of Senator Evan Bayh as
well as the “strong support of the respected senior Senate Republican Richard Lugar” (Goldman, “Obama’s Judiciary at
Midterm,” p. 267). Nonetheless, the Hamilton nomination was on the Senate Executive Calendar for 168 days,
approximately 85 days more than the average time from committee report to confirmation for circuit court nominees
under President G.W. Bush and 83 days more than the average time for circuit court nominees under President Clinton.
64
Sen. Harry Reid, Remarks in the Senate, Congressional Record, daily edition, January 24, 2013, p. S272.
65
For further discussion, see CRS Report R42996, Changes to Senate Procedures in the 113th Congress Affecting the
Operation of Cloture (S.Res. 15 and S.Res. 16), by (name redacted).

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Author Contact Information
(name redacted)
Analyst on the Federal Judiciary
[redacted]@crs.loc.gov, 7-....

Acknowledgments
The author thanks Amber Wilhelm, Graphics Specialist in the Publishing and Editorial Resources Section
of CRS, for her work on the figures included in this report.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR43058. Public record. Not legal advice.