President Bush, the Senate and the Federal Judiciary: Unprecedented Situation Calls for Unprecedented Solution

By The Numbers

Because of the recent charges and countercharges about the blocking of Clinton appellate court nominees, People For the American Way Foundation researchers have reviewed Congressional Research Service statistics on the subject, comparing the record during 1995-2000, when Republicans controlled the Senate and President Clinton submitted nominees, and 1987-1992, when Republican presidents submitted nominees to a Democratic-majority Senate. The results are stark and clear.

During the years Republicans controlled the Senate, 45.3 percent of President Clinton's nominations to the courts of appeals were returned to the White House, a rate 72 percent higher than the 26.3 percent return rate for Presidents Reagan and Bush when Democrats controlled the Senate. (None of the returned Clinton appellate court nominees were voted down - not a single one of them was allowed to come up for a vote.)

During the final two years of Clinton's term, the blockade was even tighter, with less than half of Clinton's appeals courts nominees being confirmed. More specifically, during the 106th Congress, 56 percent of President Clinton's nominations to the courts of appeals were blocked. This failure rate for President Clinton's appeals court nominees was 60 percent higher than for Presidents Reagan or George H.W. Bush, each of whom saw only 35 percent of his appeals court nominees go unconfirmed in the 100th and 102nd Congresses, respectively.

President Clinton's nominees were nearly shut out altogether during his final year in office. In his last year, 89 percent of appeals court nominees were stopped, with only one out of nine nominees being confirmed. At the end of the 106th Congress in 2000, 16 circuit court of appeals nominees made by the President were returned without a vote. In President Bush's final year, only 36 percent of his appeals court nominees were blocked.

If numbers are calculated so as to eliminate the effect of multiple nominations of individual nominees, serious discrepancies remain. Nominees were blocked during the six years Republicans controlled the Senate under President Clinton at a rate nearly 40 percent higher than during the six years Democrats controlled the Senate under Presidents Reagan and Bush - 35 percent under Clinton vs. 25 percent under Reagan and Bush.

A note on methodology: Based on reports produced by the Congressional Research Service, People For the American Way Foundation calculated the numbers in this section in two ways, reflecting two methods of treating nominations. In every Congress, some nominations are not acted upon by the Senate and are returned to the President; these returned nominees are sometimes re-nominated the following year and confirmed. In rare cases, such as Ninth Circuit Court of Appeals nominee Richard Paez, an individual is nominated and returned several times without action. So there are two sets of numbers that can be calculated: one based solely on the percentage of nominations confirmed during any Congress, and the other based upon the percentage of individual nominees confirmed overall, regardless of the Congress in which they were first nominated and final action was taken. Either method makes it clear that Clinton's appeals court nominees fared far worse than his predecessors, in spite of their quality. See tables attached.

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