Photo Credit: Brian Turner

Senate confirmation of judicial appointees always slows down in the final year of a president’s term when the Senate is not controlled by the president’s party. Under Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley, the confirmation process began to shut down almost two years before Barack Obama’s last day in office.

“Failing to confirm judges is not at all the norm even when the Senate and the White House are held by different parties,” People For the American Way’s Senior Legislative Counsel Paul Gordon wrote in a report on the obstruction of Obama’s judicial appointments.

PFAW’s report compares confirmation of George W. Bush’s judicial appointments in 2007–2008, when the Senate was controlled by Democrats and Harry Reid was Majority Leader, with the rate of confirmation under McConnell. In 2007, the Democratic Senate had confirmed 40 of Bush’s appointees to the bench. By December 2015, the Republican Senate had confirmed only 11 of Obama’s judicial nominees.

The Democratic Senate of 2007 was also more attentive to judicial vacancies than is the current Senate. At the beginning of 2007, there were 56 vacancies.

The Senate confirmed enough judges to keep the number below 50 all year, at one time getting vacancies down to 34. In 2015, vacancies had climbed from 40 in at the beginning of the year to 62.

The current Senate has also allowed the number of judicial emergencies––an administrative designation that caseloads in a court are so high that access to a justice is endangered––to rise from 12 at the start of 2015 to 31 at year’s end. In 2007, the Democratic Senate reduced the number of judicial emergencies from 26 in January to 17 by the end of the year.

The Senate adjourned in January, having failed to vote on 13 fully vetted circuit a and district court nominees. In 2015, Grassley held hearings on eight nominees, far too few to keep up with judicial vacancies. Absent organized public pressure, the confirmation process will be even slower in 2016, as Republicans leave vacancies on the bench they intend to be filled by a Republican president.

K Sources: 2015: A Year of GOP Obstruction for Judicial Nominees (PFAW); U.S. Fed News, Chairman Leahy Comments on Judicial, Executive Nominations, November 1, 2007. Graphic by Kevin Kreneck.