Percentages Matter

Kristian Kanya, writing on the Committee for Justice blog, weighs in on the inevitably confusing issue of judicial confirmation numbers, which I am generally reluctant to tackle because they are notoriously hard to calculate accurately.  After all, how does one account for things like withdrawn nominees or, worse yet, nominees who were not confirmed in one Congress and then renominated, often more than once, in subsequent Congresses? Are they counted as just one nominee or are they counted as multiple nominations?  What about someone like William H. Steele, who was nominated by President Bush to the Eleventh Circuit in 2001, not confirmed, and then renominated by Bush to a District Court seat in 2003 and then confirmed?  And what about nominees to the International Court of Trade, are they counted? 

You see, it’s complicated. 

But what is not particularly complicated, provided that we can all agree on basic numbers, is drawing comparisons across presidencies, which is what CFJ tries to do by citing this section from a Washington Post article:

“Democrats expressed surprise that Bush would revive such allegations, arguing that the Senate has confirmed more of Bush’s nominees in the past two years than were approved under the previous six years of GOP control.

The White House says 324 of 376 federal court nominees have been confirmed during Bush’s tenure, with 34 current vacancies. By comparison, Democrats say, there were 84 judicial openings at the end of Bill Clinton’s presidency.”

CFJ then compares the varying confirmation figures during recent Congresses and declares that the Democrats’ claim is “simply misleading.”   Of course, I could just point out that, in the four years they have controlled the Senate under President Bush, Democrats have confirmed more of his judicial nominees than the Republicans did during their four years of control – 168 confirmed by the Democrats compared to 156 confirmed by the Republicans.  But that is exactly the problem with this game; it all depends on what dates and calculations you choose to use.

But there is one thing on which everyone ought to be able to agree – it is not so much the total number of nominees confirmed as it is the overall percentage of confirmed.  If a president, for some reason, only put forth 100 nominees and yet saw every one of them confirmed, nobody could complain that he only had 100 judges confirmed compared to some other president who had, say, 150 confirmed out of a pool of 300.  Which brings me to this point from CFJ:  

Some aggregate figures deserve attention also. During Reagan a total of 383 federal judges were confirmed. Under Clinton, that dropped slightly to 377. However, during the Bush administration, only 326 federal judges have been put on the bench. Judicial openings or not, the numbers do not lie.

Indeed, numbers do not lie. So, for the sake of simplicity, let’s just use the figures found on Table 4(b) of this Congressional Research Service report “Judicial Nomination Statistics: U.S. District and Circuit Courts, 1977-2003” [PDF].  

According to CRS, President Reagan put forth a total of 423 District and Circuit Court nominees and saw 375 of them confirmed, a confirmation rate of 88%. President Clinton, by contrast, put forth more nominees and had fewer confirmed:  372 of 488, for a confirmation rate of 76%.  

In comparison, according to the White House’s own figures cited in the Washington Post article above, “324 of 376 federal court nominees have been confirmed during Bush’s tenure.”  That gives him a confirmation rate of 86%, well above President Clinton’s confirmation rate.  In fact, for Bush to lower his confirmation rate to match that of Clinton, he’d have to nominate another 50 or so judges before he leaves office in a few months, which is essentially impossible given that there are only 34 vacancies. 

The topic of judicial confirmation rates is complex enough as it is without organizations like CFJ throwing around figures totally devoid of context and confusing people even further. 

In short, despite all of the Right’s complaining, President Bush has had a pretty good record of getting his judges confirmed.  Of course, you’d never know that by listening to them.