The Senate’s rejection Monday of Oklahoma Magistrate Judge Robert Bacharach for an appeals court seat sent a clear message to the three other appeals court nominees hoping for a vote on the Senate floor:
Ditto for 16 district court nominees also pending on the floor. The odds of judicial confirmations after this August recess are exceptionally slim — at best. The Cubs will win the pennant before you’ll be putting on the black robes.
There were no nominees confirmed after the August recess when President Clinton was running for reelection in 1996 and only three when President Bush was running for a second term in 2004 — although five got in during the lame duck.
Still, a whopping 13 Bush I nominees, including two for circuit court seats, were confirmed after the August recess in 1992, according to Senate Judiciary Committee statistics.
Four Clinton judicial picks were confirmed after the recess in 2000, when Bush and Al Gore were running, and 10 Bush II judges were confirmed during the Obama-McCain campaign, the committee reports.
So with the numbers pretty much set, let’s recap.
President Obama, who started off slowly in getting nominations up to the Senate, never fully caught up. He’s nominated fewer judges (200) than either Bush (228) or Clinton (245) on August 1 of their fourth year in office, according to committee statistics.
At the same time, the Senate has confirmed a smaller percentage (78) of Obama nominees than Clinton’s nominees (80.8 percent) and a much smaller percentage than Bush’s nominees (86.4).
As a result, Obama , with 78 vacancies, may be the first president in decades to end his first term with more judicial vacancies than when he started.
At this point in their first terms, Clinton had 58 judicial vacancies and Bush only 28. (The latter figure is pretty much full employment.)
Liberals have criticized Obama for not having pushed harder for his nominees, noting that President Bush issued a lengthy statement at a 2002 news conference blasting “a handful” of Senate Democrats for holding up his judicial nominees because they “fear the outcome of a fair vote in the full Senate.”
“The Senate has an obligation to provide fair hearings and prompt votes to all nominees,” Bush said, “no matter who controls the Senate or who controls the White House.”
Obama did, however, mention Senate delays in a State of the Union address and in a Saturday radio address, we were told. And Senate Judiciary Chairman Pat Leahy (D-Vt.) intends to keep moving nominees this fall. Who knows? Deals are possible.
But, after those recess appointments of the consumer finance watchdog and some labor folks in January, furious Republicans are not feeling particularly cooperative on appointments.