Judicial nominations, number and average days pending

[Safiel]

The following table includes information on all Article III confirmations since Kennedy, including Supreme Court, Courts of Appeals, Districts Courts, Trade Court, the old Custom Court, the old Court of Customs and Patent Appeals and old Court of Claims.

The first column is average number of days from nomination to confirmation for all successfully confirmed nominees, by Congress and by overall President. The second column is the total number of successful confirmations.

Nixon had the lowest average of 29 days, while Trump had the highest of 242. Of course, comity broke down in the Senate after the Bork fiasco and nomination wait times have soared since than, with both parties upping the ante with delaying tactics.

Biden actually managed to break the trend during the 117th Congress, but did so by focusing on easier District Court nominations in Democrat States. As those vacancies become scarce, his average wait time will increase as he tries to fill vacancies in split States and Republican States. His 118th Congress average is about equal to Trump's average for his presidency.

The only fix for this is structural.

Major changes to the Senate rules:

1. Require hearings to be held within 30 days of receipt of a nomination.
2. Eliminate committee vote, nomination goes to floor immediately upon conclusion of hearing.
3. Once the nomination is on the floor and 30 days have elapsed from the nomination, any Senator can demand a vote on final confirmation, which must be held immediately.
4. If a nomination reaches 60 days of age, it is deemed confirmed with or without a vote.

This puts the onus where it should be, on opponents of a nomination, requiring them to gain sufficient votes to defeat a nomination outright. All methods of delay and obstruction would be eliminated.

It would benefit Presidents of both parties.

It would benefit the Judiciary as an institute by reducing the vacancy rate, which is kept artificially high by this needless delay.

And it would restore the time standards that prevailed for most of our history.

Again, first column is average days pending, second column is total Article III Judicial nominees confirmed, both by Congress and overall for each President. Biden's record is current through January 10th, 2024, the latest Article III Judicial confirmation.

JFK
87th 46 111
88th 86 16
Overall 51 127
LBJ
88th 63 21
89th 33 93
90th 42 66
Overall 40 180
Nixon
91st 33 91
92nd 25 104
93rd 29 43
Overall 29 238
Ford
93rd 16 14
94th 41 48
Overall 36 62
Carter
95th 42 62
96th 79 199
Overall 71 261
Reagan
97th 34 88
98th 40 78
99th 73 132
100th 124 85
Overall 69 383
GHWB
101st 80 71
102nd 112 122
Overall 100 193
Clinton
103rd 80 128
104th 126 75
105th 224 101
106th 204 73
Overall 152 377
GWB
107th 160 100
108th 194 104
109th 329 54
110th 216 68
Overall 211 326
Obama
111th 192 62
112th 242 111
113th 227 134
114th 306 22
Overall 231 329
Trump
115th 210 85
116th 260 149
Overall 242 234
Biden
117th 131 97
118th 241 71
Overall 177 168

 

[Rich2018]

The only fix for this is structural.

Major changes to the Senate rules:

1. Require hearings to be held within 30 days of receipt of a nomination.
2. Eliminate committee vote, nomination goes to floor immediately upon conclusion of hearing.
3. Once the nomination is on the floor and 30 days have elapsed from the nomination, any Senator can demand a vote on final confirmation, which must be held immediately.
4. If a nomination reaches 60 days of age, it is deemed confirmed with or without a vote.

You don't think #4 would be open to abuse ?

 

[Safiel]

You don't think #4 would be open to abuse ?

Before I reply, I would be remiss if the entire Senate and its rules is being abused and by both parties.

Hell, just got over the clown from Alabama holding up military nominations over his personal fetus fetish.

So, at worst, we would be switching from one form of abuse to another, though I don't see a mechanism for abuse.

1. Nominees come to the Senate with a presumption of being qualified. It is the burden of individual Senators to impeach the qualifications of a nominee and build the support of 51 Senators to block the nomination.

2. #4 essentially restores the "status quo ante" of 60 days or less. A time limit FORCES opposing Senators to actually demand a vote and defeat a nominee outright by gaining 51 or more no votes. It makes pointless delay impossible. And majority Senators can expedite a nomination if they wish by demanding a vote in fewer than 60 days.

3. And if a nomination is defeated, the President can start the process over in an expedited manner with a new nominee.

There has to be major change of some sort in the Senate. What has been going on the last three decades is unacceptable.

 

[Rich2018]

2. #4 essentially restores the "status quo ante" of 60 days or less. A time limit FORCES opposing Senators to actually demand a vote and defeat a nominee outright by gaining 51 or more no votes. It makes pointless delay impossible. And majority Senators can expedite a nomination if they wish by demanding a vote in fewer than 60 days.

If those "Opposing Senators", are in the majority, why wouldn't they want a vote anyway ?
Preventing them from holding a vote by procedures like the filibuster, only gives a minority party a tool to get someone approved, that they otherwise would not.

 

[Safiel]

If those "Opposing Senators", are in the majority, why wouldn't they want a vote anyway ?
Preventing them from holding a vote by procedures like the filibuster, only gives a minority party a tool to get someone approved, that they otherwise would not.

I think you misunderstand my proposal.

ANY Senator could FORCE a vote prior to 60 days.

The 60 day is simply an upper time limit, which, if no vote is held, the nomination is deemed confirmed.

Opponents would definitely have the ability to force a vote on a nomination prior to the end of the 60 days.

 

[Rich2018]

I think you misunderstand my proposal.

ANY Senator could FORCE a vote prior to 60 days.

The 60 day is simply an upper time limit, which, if no vote is held, the nomination is deemed confirmed.

Opponents would definitely have the ability to force a vote on a nomination prior to the end of the 60 days.

But wouldn't senators, not wishing the nomination to be confirmed, seek to delay any vote through procedural shenanigans - like a filibuster ?

How about if no vote is held after 60 days, a mandatory vote is held on day 61 ?

 

[Safiel]

But wouldn't senators, not wishing the nomination to be confirmed, seek to delay any vote through procedural shenanigans - like a filibuster ?

How about if no vote is held after 60 days, a mandatory vote is held on day 61 ?

I would eliminate the filibuster for nominations.

But I would be ok with a mandatory vote on day 61 if a vote has not already been held.

 

[Rich2018]

I would eliminate the filibuster for nominations.

But I would be ok with a mandatory vote on day 61 if a vote has not already been held.

Not sure how you can eliminate the filibuster....the Senate makes its own rules, as does the House for that matter
But the 61 day mandatory vote would make such a ban unnecessary for Supreme Court confirmations

The problem is the "Lame Duck" presidency though

The Constitution, that allows for a president from one party, to be emasculated by a hostile Senate - as Obama was, is the real problem.