John Lott: Don't Expect Supreme Or Appeals Court Confirmations In 2016

By any measure, time has virtually run out for President Obama to nominate someone to the Supreme Court.

What has gone unnoticed is that the problem of confirming judges during presidential election years isn’t just a difficulty facing Supreme Court nominees. Recent Senate tradition is clear: Few Court of Appeals nominees get confirmed during those years and none gets confirmed after July.

The reason is simple: Judicial confirmations are political footballs. Particularly when a president is nearing the end of his eighth year as president, the opposing political party wants to leave vacancies in the hope that their party will have the chance to fill them.

Given that courts today have the final say in virtually every aspect of our lives – including whom we can marry, the environment, how criminals are punished and whether people can own a gun for self-defense -- who gets to be a judge has incredible importance.

Many have mentioned that since Frank Murphy in 1940 no Supreme Court nominee has been nominated and confirmed in a presidential election year. Even then, the person that Murphy was replacing died on Nov. 16, 1939. Justice Antonin Scalia died three months later on Feb. 13, 2016.

But it isn’t just Supreme Court nominees that have difficulties getting confirmed during a presidential election year. The inability to confirm appeals court judges during presidential elections years has held true for both Republican and Democratic presidents and when both parties have controlled the Senate.

Since 1996, of the appeals court confirmations that occurred during the two years before a presidential election, just a third have been confirmed during the election year itself. No nominee has been confirmed after July.

Five nominees have been confirmed in either June or July of a presidential election year. Four of the five occurred when one party controlled both the presidency and the Senate. The fifth was a Clinton nominee, Johnnie Rawlinson, who became the first black female to serve on the 9th Circuit Court of Appeals.

Although Republicans partly just wanted to avoid accusations of racism and sexism, they also let her through because she was unlikely to be very influential on the court. Her legal background was very weak, with the law school she graduated from not even being ranked in the top 100.

May is pretty much the last month when a significant number of appeals court nominees get confirmed, especially when different parties control the presidency and the Senate.

It’s been getting harder for presidents to push through appeals court nominees during their eighth year in office. George W. Bush only got two such nominees confirmed during 2008, his last year in office. The last was confirmed on May 20, 2008.

The problem Obama faces isn’t just the dates that any court nominees can be confirmed are fast approaching. Supreme Court nominations take time. Since the beginning of the Reagan administration, Supreme Court confirmation votes have taken an average of 83 days. When Republicans and Democrats have split control of the presidency and Senate, confirmations have lasted 87 days.

Even in a normal year, a Supreme Court nomination that Obama made by March 6 would have trouble getting confirmed before the beginning of June.

Yet, a confirmation during a presidential election year when politicians think that the nomination might influence the election surely won’t be your average confirmation. Put them in front of cameras during an election year when a presidential race is potentially at stake and politicians may take even more extreme actions.

As it is, during confirmations many senators on the Senate Judiciary Committee have tended to talk much more than the nominees whom they are questioning.

If you doubt how important these positions are, just recall the judicial nominations of Clarence Thomas or Robert Bork and the consequences another such nomination could have during a presidential election.

Appeals court nominees are nowhere near as important or political as Supreme Court nominees. But if appeals court nominations are too political for election years, that’s certainly much more true for Supreme Court justices.