Bill Clinton’s Lower-Court Appointments, By The Numbers
The statistics reveal a mixed story
The statistics on Bill Clinton’s lower-court appointments over his two terms in office can be sliced and diced in different ways. Let’s begin by emphasizing his successes in achieving his goals.
Over his eight years, Clinton appointed 396 lower-court judges. That total exceeds Ronald Reagan’s eight-year total of 373 lower-court judges. It is also more than double George H.W. Bush’s four-year total of 192. (Except where otherwise stated, I draw the statistics in this post from the Federal Judicial Center’s biographical directory of federal judges and from the United States Courts archive of judicial vacancies.)
Clinton’s besting of Reagan is all the more noteworthy in light of the fact that Clinton faced a Republican-controlled Senate during his last six years while Reagan faced a Democrat-controlled Senate only during his last two years. (George H.W. Bush faced a Democrat-controlled Senate during all four of his years as president.) In Clinton’s last two years, a Republican-controlled Senate confirmed nearly as many of his lower-court nominations (117) as the Democratic-controlled Senate did in his first two years (126). And in the first two years of his second term, he had more appellate nominees confirmed (20) than he did in the first two years of his first term (19).
There were forty fewer judicial vacancies (67) at the end of Clinton’s presidency than there were at the beginning (107). That’s a decline of nearly 40%.
Clinton lived up to his pledge to “change the face of the Federal courts.” Of Clinton’s 396 appointees, 108 were women and 93 were racial minorities, including 62 black judges and 25 Hispanic judges. The percentage of Clinton’s appointees who were female (28%) was nearly double what the diversity pioneer Jimmy Carter had achieved, and the percentage who were racial minorities (23%) was slightly higher than Carter’s. (I again set aside the broader question of what role demographic diversity factors should play in judicial selection.)
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Looked at differently, the numbers tell a more complicated story. As John Yoo, my successor as general counsel to the Senate Judiciary Committee, explained in my interview with him, committee chairman Orrin Hatch would sometimes play Democratic senators off against the White House by moving home-state district-court nominees at the expense of appellate nominees. The statistics suggest that Republicans had some success in blocking appellate nominees.
Although Clinton overall appointed 23 more lower-court judges than Reagan, his total of appellate judges was 18 less—65 for Clinton, 83 for Reagan. To put the point another way, only 16% of Clinton’s lower-court appointees were appellate judges, as compared to 22% of Reagan’s.
Likewise, whereas only 16% of the judicial vacancies that Clinton inherited were appellate, a full one-third (26 of 78) of the vacancies at the end of his term were appellate.
Data from this Congressional Research Service report on judicial nominations from 1977 forward paints a similar picture. In the eight Congresses that preceded Clinton’s presidency as well as in the first Congress of his presidency, there was generally little difference between the confirmation rate for appellate nominees and the confirmation rate for district-court nominees. (See Table 3 on page 8.) The one notable exception was in the last Congress of Reagan’s presidency, when the confirmation rate for appellate nominees (65.4%) was nearly twenty points lower than the confirmation rate for district nominees (84.6%). But in all three of the Congresses under Clinton in which Republicans controlled the Senate, the confirmation rate for appellate nominees was much lower than for district nominees—by margins of 17.9%, 17.3%, and 24.6%.
The confirmation rates for appellate nominees in those three Congresses—55.0%, 66.7%, and 44.1%—were also low compared to most previous Congresses. The previous lows had been 65.4% in the last Congress under Reagan and 64.5% in the last Congress under Bush 41.
The CRS report also documents dramatic increases in the number of days from nomination to confirmation for Clinton’s appellate nominees. (See Figure 1 on page 18.) As it sums things up:
Overall, 84% of President Carter’s circuit court nominees were confirmed within 90 days of being nominated. During the Reagan presidency, 76% of circuit court nominees were confirmed within 90 days of nomination, while during the George H. W. Bush presidency 57% of circuit court nominees were confirmed within this time frame.
During the Clinton presidency, the percentage of circuit court nominees approved by the Senate within 90 days fell below half of all circuit court nominees confirmed (to 26%).
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In June 1999, Clinton nominated an obscure but very talented 39-year-old law-professor-turned-White-House-staffer to a vacancy on the powerful U.S. Court of Appeals for the D.C. Circuit. That nominee did not receive a confirmation hearing, and the nomination was returned to the White House after the 2000 presidential election.
As with John Roberts’s failed nomination to the D.C. Circuit in 1992, one has to wonder whether Elena Kagan’s ultimate path to the Supreme Court was made easier because she did not have a long judicial record (in her case, any judicial record) that might have put some obstacles in her way.