Order Code RL33953
Nominations to Article III Lower Courts
by President George W. Bush
During the 110th Congress
Updated May 30, 2008
Denis Steven Rutkus
Specialist on the Federal Judiciary
Government and Finance Division
Kevin M. Scott
Analyst on the Federal Judiciary
Government and Finance Division
Maureen Bearden
Information Research Specialist
Knowledge Services Group

---

Nominations to Article III Lower Courts by President
George W. Bush During the 110th Congress
Summary
This report tracks nominations made by President George W. Bush to
judgeships on the U.S. courts of appeals, the U.S. district courts, and the U.S. Court
of International Trade — the lower courts on which, pursuant to Article III of the
Constitution, judges serve “during good Behaviour.” It lists and keeps count of all
nominations made to these courts during the 110th Congress, including pertinent
actions taken by the Senate Judiciary Committee and the full Senate. It also tracks
the number of judicial vacancies on the courts (including vacancies classified by the
federal judiciary as “judicial emergencies”), the number of nominations pending to
fill the vacancies, and the names of the pending nominees. It presents the number of
persons nominated by President Bush to each category of lower Article III court
during his entire presidency (breaking down each total to show the number
confirmed, pending, returned and not re-nominated, and withdrawn). Last, it provides
a tabular comparison of President Bush’s lower court nominee statistics with those
of the four Presidents who immediately preceded him:
As of May 28, 2008:

! President Bush had nominated 20 individuals to the U.S. courts of
appeals during the 110th Congress, with the Senate having confirmed
eight of them, and with two withdrawn by the President.

! President Bush had nominated 61 individuals to the U.S. district
courts during the 110th Congress, with the Senate having confirmed
38 of them, and with one withdrawn by the President.
! There were 11 judicial vacancies on the U.S. courts of appeals, with
10 nominations pending to fill these vacancies.
! There were 36 U.S. district court vacancies, with 21 nominations
pending to fill these judgeships, and an additional one nomination
pending to fill a future district court vacancy.
! No vacancies had occurred on the U.S. Court of International Trade
during the 110th Congress (and thus no nominations have been made
to the court during the Congress).
During the entire presidency of George W. Bush (from January 20, 2001, to May
28, 2008), there have been 352 nominees to Article III lower court judgeships. Of
the 352 total nominees, 32 are pending, 302 have received Senate confirmation, nine
have been returned to the President in a previous Congress and not resubmitted, and
nine have been withdrawn by the President and not resubmitted.
For corresponding information about President Bush’s appeals and district court
nominations during earlier Congresses, see CRS Report RL31868, U.S. Circuit and
District Court Nominations by President George W. Bush During the 107th-109th
Congresses, by Denis Steven Rutkus, Kevin M. Scott, and Maureen Bearden.
This report will be updated to record new actions by President Bush, the Senate
Judiciary Committee, or the Senate involving Article III lower court nominations.

---

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Article III Lower Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Judicial Nomination Data Tracked . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Judicial Nomination Tables for the 110th Congress . . . . . . . . . . . . . . . . . . . . . . . . 4
Appendix. The Appointment Process for Nominations to Article III
Judgeships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
List of Tables
Table 1. Vacancies in Article III Lower Court Judgeships . . . . . . . . . . . . . . . . . . 5
Table 2. Pending Nominations to the U.S. Courts of Appeals, District
Courts, and Court of International Trade in the 110th Congress . . . . . . . . . . 5
Table 3. President George W. Bush’s Nominations to the U.S. Circuit
Courts of Appeals During the 110th Congress . . . . . . . . . . . . . . . . . . . . . . . . 9
Table 4. President George W. Bush’s Nominations to the U.S. District
Courts During the 110th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Table 5. President George W. Bush’s Nominations to the U.S. Court of
International Trade During the 110th Congress . . . . . . . . . . . . . . . . . . . . . . 15
Table 6. President George W. Bush’s Nominees to Article III Lower
Courts: A Numerical Breakdown According to Status of Their Most
Recent Nomination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Table 7. Article III U.S. District Courts and Courts of Appeals:
Number of Nominees, Number Confirmed, and Percent of
Nominees Confirmed, Five Most Recent Presidents . . . . . . . . . . . . . . . . . . 17

---

Nominations to Article III Lower Courts by
President George W. Bush During the
110th Congress
Introduction
Under Article III of the Constitution of the United States, the appointment of
individuals to lifetime positions on the lower federal courts (the U.S. courts of
appeals, U.S. district courts, and U.S. Court of International Trade) requires Senate
confirmation.1 In recent years, Congress has expressed increasing interest in the
nomination and confirmation process for lower federal court judges.2 During the
110th Congress, the number of lower court nominations by President George W. Bush
that have been confirmed or are likely to be confirmed has been a subject of
continuing Senate interest.3
1 For an overview of the process for appointing lower court judges (and the respective roles
played in that process by the President, the Senate Judiciary Committee, and the full
Senate), see the Appendix.
2 See, for example, Nancy Scherer, Scoring Points: Politicians, Activists, and the Lower
Federal Court Appointment Process (Stanford, CA: Stanford University Press, 2005); Lee
Epstein and Jeffrey A. Segal, Advice and Consent: The Politics of Judicial Appointments
(New York: Oxford University Press, 2005); Sheldon Goldman, “Judicial Confirmation
Wars: Ideology and the Battle for the Federal Courts,” University of Richmond Law Review,
vol. 39, March 2005, pp. 871-908; Stephen B. Burbank, “Politics, Privilege & Power: The
Senate’s Role in the Appointment of Federal Judges,” Judicature, vol. 86, July-August
2002, pp. 24-27; and Elliot E. Slotnick, “A Historical Perspective on Federal Judicial
Selection,” Judicature, vol. 86, July-August 2002, pp. 13-16.
3 On April 15, 2008, for instance, in a colloquy on the Senate floor, the Senate Democratic
majority leader and the Senate Republican leader discussed the number of nominations to
the U.S. circuit courts of appeals which might be expected to be confirmed in the 110th
Congress before Memorial Day, May 26, 2008. The majority leader, Sen. Harry Reid of
Nevada, stated that he and the chairman of Senate Judiciary Committee, Sen. Patrick J.
Leahy of Vermont, “are going to do everything we can to approve three circuit court judges
by Memorial Day.” He stated, however, that “[a]fter June, we will have to take a real close
look at judges in a Presidential election year.” The Republican leader, Sen. Mitch
McConnell of Kentucky, noted that an average of 17 circuit court nominations received
Senate confirmation during the last two years of the three previous presidencies. In the 110th
Congress, he said, “we are running dramatically behind,” with only seven circuit court
nominations confirmed thus far, which he said was “a paltry number in comparison to how
President Reagan, President [George H. W.] Bush, and President Clinton were handled in
a similar situation.” Sen. Harry Reid and Sen. Mitch McConnell, remarks in the Senate,
Congressional Record, daily edition, vol. 154, April 15, 2008, pp. S3012-S3014. Between
April 15 and May 28, 2008, the Senate (on May 20) confirmed one more circuit court of
(continued...)

---

CRS-2
To provide Congress with a current overview of the lower court appointment
process, this report tracks the status of certain lower court nominations made by
President George W. Bush during the 110th Congress. The report deals primarily
with nominations to lower Article III courts (those courts on which judges serve
“during good Behaviour”), while also accounting for infrequent nominations to the
small number of territorial district judgeships, which have fixed-term appointments.4
The Article III Lower Courts
Article III, Section 1 of the Constitution provides, in part, that the “judicial
Power of the United States shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and establish.” It further
provides that justices on the Supreme Court and judges on lower courts established
by Congress under Article III have what effectively has come to mean life tenure,
holding their office “during good Behaviour.”5 By contrast, judges in various federal
courts established by Congress under Article I of the Constitution are appointed for
fixed terms.6 Along with the Supreme Court, the courts that constitute the Article III
courts in the federal judicial system are the U.S. courts of appeals, the U.S. district
courts, and the U.S. Court of International Trade. The following are thumbnail
descriptions of each of the lower Article III courts:
The U.S. Courts of Appeals. These courts take appeals from federal trial
court decisions and are empowered to review the decisions of many administrative
agencies. Cases presented to these courts are generally considered by judges sitting
in three-member panels. Altogether, 178 permanent appellate court judgeships are
authorized by law.7 Courts within the courts of appeals system are often called
“circuit courts,” because they are divided into 12 geographic circuits and an
3 (...continued)
appeals nominee, bringing to eight the total number confirmed thus far in the 110th Congress.
4 For a detailed narrative and statistical analysis of President George W. Bush’s lower court
nominations during the first six years of his presidency, see CRS Report RL31868, U.S.
Circuit and District Court Nominations by President George W. Bush During the 107th-109th
Congresses, by Denis Steven Rutkus, Kevin M. Scott, and Maureen Bearden.
5 Pursuant to this constitutional language, Article III judges may hold office for as long as
they live or until they voluntarily leave office. A President has no power to remove them
from office. Article III judges may be removed by Congress only through the process of
impeachment by the House and conviction by the Senate.
6 Citing the power to do so in Article I of the Constitution, Congress, in separate statutes,
has created four courts of specialized subject matter jurisdiction — the U.S. Court of
Federal Claims, the U.S. Tax Court, the U.S. Court of Appeals for Veterans Claims, and the
Court of Appeals for the Armed Forces — and has authorized 15-year judicial tenure in
these courts.
7 On January 7, 2008, President George W. Bush signed H.R. 660, the Court Security
Improvement Act of 2007 (P.L. 110-77, 121 Stat. 2534). Among other things, the act
decreased the number of judgeships in the D.C. Circuit Court of Appeals from 12 to 11 and,
effective January 21, 2009, increased the number of judgeships on the Ninth Circuit Court
of Appeals from 28 to 29. Accordingly, there are 178 judgeships on the courts of appeals
until January 21, 2009, when, barring any other adjustment, that number will rise to 179.

---

CRS-3
additional nationwide circuit, the Federal Circuit, which has specialized subject
matter jurisdiction. In this report, nominations to U.S. courts of appeals judgeships
are, at various points, also referred to as “circuit court nominations.”
The U.S. District Courts. These are the trial courts of general federal
jurisdiction. Each state has at least one district court, while some states have as many
as four. There are 674 district court judgeships authorized by law, including those
for the District of Columbia and the Commonwealth of Puerto Rico.8
The U.S. Court of International Trade. This court has original and
exclusive jurisdiction over civil actions against the United States, its agencies and
officers, and certain civil actions brought by the United States arising out of import
transactions and federal statutes affecting international trade. The court is composed
of nine judges, no more than five of whom may belong to one political party.
Congress also has established district courts in the territories of Guam, the U.S.
Virgin Islands, and the Northern Mariana Islands. Like the U.S. district courts, the
territorial courts are trial courts of general federal jurisdiction, while also having
jurisdiction over many local matters that, within the 50 states, are handled in state
courts. Because they are trial courts of general federal jurisdiction, whose rulings
may be appealed to a U.S. court of appeals,9 the territorial courts can be viewed as
a category of court falling within the federal district court system.10 Territorial
courts, however, are not Article III courts, and judicial appointees to these courts
serve 10-year terms, with one judgeship each in Guam and the Northern Mariana
Islands, and two in the Virgin Islands.
Judicial Nomination Data Tracked
This report lists and keeps count of all nominations made to the above-discussed
courts during the 110th Congress, including certain actions taken on these
8 The 674 total consists of 663 permanently authorized judgeships and 11 “temporary”
judgeships (which, pursuant to statute, temporarily increase the number of judgeships for
specified judicial districts. These districts revert back to the permanently authorized number
of judgeships at a future time fixed by the statute — typically, when, after a specified
number of years, a judgeship in the district is vacated).
9 Decisions of the U.S. District Courts for the District of Guam and the District of the
Northern Mariana Islands are appealed to the Ninth Circuit Court of Appeals. Decisions of
the U.S. District Court for the District of Virgin Islands are appealed to the Third Circuit
Court of Appeals.
10 For instance, the federal judiciary subsumes territorial courts under the heading of
“District Courts” in various places on its website, at [http://www.uscourts.gov]. In one link
on the website, entitled “Authorized Judgeships,” accessed via [http://www.uscourts.gov/
judicialvac.html], the judiciary lists the number of authorized judgeships, respectively, on
the Supreme Court, the circuit courts, the district courts, and the Court of International
Trade. The link, under the heading of “District Courts,” provides an “Article III” sub-
heading (with 674 judgeships) and a “Territorial Court” sub-heading (with 4 judgeships),
and, in an adjacent column, 678 is shown to be total number of judgeships for the “District
Courts” heading.

---

CRS-4
nominations by the Senate Judiciary Committee and the full Senate. The report also
provides statistics for all of the nominations that President Bush has made to these
courts during his entire presidency, starting with the 107th Congress in January 2001
and carrying through to the present. (Thus far in the 110th Congress, no nominations
have been made either to the U.S. Court of International Trade or to the territorial
district courts, although President Bush made, and the Senate confirmed, nominations
to these courts during previous Congresses.)
In the following pages, President Bush’s nominations to the lower Article III
courts are listed or counted in Tables 1 through 6. Some of these tables, where
noted, also keep track of nominations made to the territorial courts. Appendix 1
provides a brief textual overview of the principal steps in the process for appointing
lower court judges.
Judicial Nomination Tables for the 110th Congress
Table 1 is a judicial vacancy table. For each type of Article III lower court —
circuit, district, and Court of International Trade — it shows the number of
judgeships vacant as of the date listed, as well as the number of nominations pending
to fill those judgeships. Table 1 also displays the number of nominations pending
to fill “future vacancies,” which occur when judges in active service announce their
retirement to occur on a date that has not yet been reached or when a judge in active
service indicates a plan to retire or take senior status upon the confirmation of a
successor.
In addition, Table 1 shows how many of these vacancies are classified by the
federal judiciary as “judicial emergencies.” For the courts of appeals, a judicial
emergency is any vacancy in a circuit where there are more than 700 adjusted filings
per panel, or any vacancy in a circuit that has existed for more than 18 months and
where adjusted filings are between 500 to 700 per panel.11 For a district court, a
judicial emergency is any vacancy in a district where weighted filings exceed 600 per
judgeship, or any vacancy in existence more than 18 months where weighted filings
are between 430 and 600 per judgeship, or any court with more than one authorized
judgeship and only one active judge.12
11 “Adjusted filings” eliminate reinstated cases and weight pro se appeals as one-third of a
case. All other cases have a weight of one. The number of adjusted filings in a given year
is then divided by the number of three-judge panels on a circuit (e.g., a circuit with 7
authorized judgeships has 2.33 panels). Adjusted filings data are updated every three
months.
12 “Weighted filings” use a system developed by the Federal Judicial Center to account for
how much of a judge’s time each case type should take. Like adjusted filings data, it is an
annual measure of court workload updated every three months. According to the
Administrative Office for the United States Courts, “average civil cases or criminal
defendants each receive a weight of approximately 1.0; for more time-consuming cases,
higher weights are assessed (e.g., a death-penalty habeas corpus case is assigned a weight
of 12.89); and cases demanding relatively little time from judges receive lower weights (e.g.,
a defaulted student loan case is assigned a weight of 0.031).” See [http://www.uscourts.gov/

---

CRS-5
Table 1. Vacancies in Article III Lower Court Judgeships
(as of May 28, 2008)
Nominations Pending
Judicial Emergencies
Court
Vacancies
For Existing
For Future
Nominees
Number
Vacancies
Vacancies
Pending
U.S. Courts of
11
10
0
8
7
Appeals
U.S. District
36
21
1
8
6
Courts
U.S. Court of
0
0
0
0
0
International
Trade
Total
47
31
1
16
13
Source: CRS analysis of data provided by the Administrative Office for the United States Courts,
available at [http://www.uscourts.gov/judicialvac.html].
Table 2, which lists pending nominations, presents all Article III lower court
nominations made during the 110th Congress that were pending as of the date listed.
The table shows the date each nomination was received by the Senate, the date of any
hearing on the nomination before the Judiciary Committee, and the date of any vote
by the committee to report the nomination to the Senate. The table also indicates
which nominations in the list are renominations — persons nominated to the same
judgeship either earlier in the 110th Congress or in a previous Congress.
Table 2. Pending Nominations to the U.S. Courts of Appeals,
District Courts, and Court of International Trade
in the 110th Congress
(as of May 28, 2008)
Date
No.
Name of Nominee
Court
Received by
Committee
Hearing
Senate
Action
Circuit Courts of Appeals
1
Keisler, Peter D.a
D.C.
1/9/07
b
2
Kethledge, Raymond M.a
Sixth
3/19/07
5/7/08
3
Conrad, Robert J., Jr.
Fourth
7/17/07
4
Stone, Shalom D.
Third
7/17/07
5
Matthews, Steve A.
Fourth
9/6/07
6
Pratter, Gene E.K.
Third
11/15/07
7
Rosenstein, Rod J.
Fourth
11/15/07
8
Smith, William E.
First
12/6/07
9
White, Helene N.
Sixth
4/15/08
5/7/08
12 (...continued)
library/fcmstat/cmsexpl06.html].

---

CRS-6
Date
No.
Name of Nominee
Court
Received by
Committee
Hearing
Senate
Action
10
Conrad, Glen E.
Fourth
5/8/08
District Courts
1
Farr, Thomas Alvin a
E.NC
1/9/07
2
Rogan, James E.a
C.CA
1/9/07
3
Dugas, David R.
M.LA
3/19/07
4
Honaker, Richard H.
WY
3/19/07
2/12/08
5
Powell, William J.
N.WV
5/24/07
6
Puryear, Gustavus A., IV
M.TN
6/13/07
2/12/08
7
Almond, Lincoln D.
RI
11/15/07
8
Davis, Mark S.
E.VA
11/15/07
4/3/08
4/24/08
9
Kays, David G.
W.MO
11/15/07
4/3/08
4/24/08
10
Novak, David J.
E.VA
11/15/07
4/3/08
11
Short, Carolyn P.
E.PA
11/15/07
12
Limbaugh, Stephen N., Jr
E.MO
12/6/07
4/3/08
4/24/08
13
Snow, G. Murray
AZ
12/11/07
5/1/08
5/22/08
14
Suddaby, Glenn T.
N.NY
12/11/07
15
Lawrence, William T.
S.IN
2/14/08
5/1/08
5/22/08
16
Connolly, Colm F.
DE
2/26/08
17
Matsumoto, Kiyo A.
E.NY
3/11/08
18
Seibel, Cathy
S.NY
3/11/08
19
Murphy, Stephen J., III
E.MI
4/15/08
5/7/08
20
Gardephe, Paul G.
S.NY
4/29/08
21
Waddoups, Clark
UT
4/29/08
22
Anello, Michael M.
S.CA
4/30/08
Court of International Trade
(There are no pending nominations to the Court of International Trade.)
Source: CRS Judicial Nominations Database
a. Renomination of an individual first nominated in the 109th Congress (2005-2006).
b. The individual received a hearing in the 109th Congress on a nomination to the same position.
Tables 3 and 4 list all nominations to the circuit courts of appeals and to the
district courts, respectively, made by President Bush during the 110th Congress, as of
the date listed, and any actions taken on the nominations.13 The nominations are
listed in chronological order according to the date on which each was received by the
Senate. The tables show how far along each nomination has progressed in the
appointment process, with separate columns indicating the date on which any of the
following occurred:
13 In the event any nominations are made to the territorial district courts, they will be listed
in Table 4, and treated as falling within the category of district court nominations, even
though, as discussed above, they are not Article III court nominations. Thus far during the
110th Congress, no nominations have been made to the territorial courts.

---

CRS-7
! the Judiciary Committee held a hearing on the nomination,
! the committee voted to report or take other action on the nomination,
or
! final action was taken on the nomination.

When final action has occurred on a nomination, the nature of the action is
indicated in another column, under the heading “Disposition.” (For each nomination,
one of four kinds of disposition is possible — confirmation by the Senate, return of
the nomination to the President, withdrawal by the President, and rejection by the
Senate. During George W. Bush’s presidency, however, the Senate has never voted
to reject a judicial nomination.) An additional column, for nominations receiving a
Senate confirmation vote, indicates whether the vote was by roll call (by supplying
the roll call tally) or by voice vote.
A final column in Tables 3 and 4 presents time-span information for
nominations having received final action in the 110th Congress. Specifically, for each
such nomination, the column measures the number of days that elapsed between a
nominee’s first nomination to a particular court and the final action on this (the most
recent) nomination. In some cases, a nominee has been nominated only once by
President Bush for a judgeship, and the time span measured for such a nominee in the
final column in Tables 3 and 4 is the number of days that elapsed between the date
during the 110th Congress that the nomination was received in the Senate and the
date it received final action. However, in other cases, a judicial nominee in the 110th
Congress has been nominated more than once, with one or more nominations of that
person having been made in an earlier Congress. For such a nominee, the final
column in Tables 3 and 4 measures the number of days that elapsed between the
nominee’s first nomination in the earlier Congress and the date that the nominee’s
nomination in the 110th Congress received final action.14
Table 3 shows that, thus far in the 110th Congress, President Bush has
nominated 20 individuals to circuit court judgeships,15 eight of whom have been
confirmed by the Senate, and the nominations of two were withdrawn by the
President. Table 4 shows that, thus far in the 110th Congress, the President has
nominated 61 individuals to district court judgeships. Of those 61, 38 have been
confirmed, and the nomination of one was withdrawn by the President.
Table 5, for the present, is an empty table, which exists to account for any
future nominations that President Bush might make to the U.S. Court of International
Trade. (Thus far during the 110th Congress, no nominations have been made to this
14 In the event a person were nominated for the first time to a judgeship during the 110th
Congress, only to be re-nominated during the 110th Congress, the final column in Tables 3
and 4 would show, in the row for the nominee’s last nomination, the time elapsed between
date of first nomination and date of final action on the last nomination.
15 While Table 3 lists 21 nominations to the courts of appeals, the number of persons
nominated is 20. The 21 nominations include two of the same person, N. Randy Smith. As
Table 3 shows, Smith’s first nomination in the 110th Congress to a particular seat on the
Ninth Circuit was withdrawn on the same day that he was renominated for a different Ninth
Circuit seat.

---

CRS-8
court.) The table is of the same format as Tables 3 and 4. Accordingly, in the event
any nominations are made to the court, the table will list actions on the nominations
by the Judiciary Committee and the Senate, any other final action taken, and number
of days elapsed between the date of nomination and date of final action.

---

CRS-9
Table 3. President George W. Bush’s Nominations to the U.S. Circuit Courts of Appeals During the 110th Congress
(January 3, 2007 - May 28, 2008)
Date
Days Elapsed,
No.
Name of Nominee
State
Court
Disposition
Votea First Nomination
Nomination
Committee
Hearing
Final Action
to Final Actionb
Received
Action
1
Hardiman, Thomas M.c
PA
Third
1/9/07
e
3/8/07
3/15/07
Confirmed
95-0
183
2
Keisler, Peter D.c
MD
D.C.
1/9/07
e
3
Livingston, Debra A.c
NY
Second
1/9/07
4/11/07
5/3/07
5/9/07
Confirmed
91-0
315
4
Smith, N. Randy c
ID
Ninth
1/9/07
e
1/16/07
Withdrawn
—
—
5
Southwick, Leslie
MS
Fifth
1/9/07
5/10/07
8/2/07
10/24/07
Confirmed
59-38
288
6
Smith, N. Randy cd
ID
Ninth
1/16/07
e
2/8/07
2/15/07
Confirmed
94-0
426
7
Kethledge, Raymond M.c
MI
Sixth
3/19/07
5/7/08
8
Murphy, Stephen J., III c
MI
Sixth
3/19/07
4/15/08
Withdrawn
—
657
9
Elrod, Jennifer W.
TX
Fifth
3/29/07
7/19/07
9/20/07
10/4/07
Confirmed
Voice
189
10
Conrad, Robert J., Jr.
NC
Fourth
7/17/07
11
Haynes, Catharina
TX
Fifth
7/17/07
2/21/08
4/3/08
4/10/08
Confirmed
Voice
268
12
Stone, Shalom D.
NJ
Third
7/17/07
13
Tinder, John D.
IN
Seventh
7/17/07
9/25/07
11/1/07
12/18/07
Confirmed
93-0
154
14
Matthews, Steve A.
SC
Fourth
9/6/07
15
Getchell, E. Duncan, Jr.
VA
Fourth
9/6/07
1/23/08
Withdrawn
—
139
16
Pratter, Gene E.K.
PA
Third
11/15/07
17
Rosenstein, Rod J.
MD
Fourth
11/15/07

---

CRS-10
Date
Days Elapsed,
No.
Name of Nominee
State
Court
Disposition
Votea First Nomination
Nomination
Committee
Hearing
Final Action
to Final Actionb
Received
Action
18
Smith, William E.
RI
First
12/6/07
19
Agee, G. Steven
VA
Fourth
3/13/08
5/1/08
5/12/08
5/20/08
Confirmed
96-0
68
20
White, Helene N.
MI
Sixth
4/15/08
5/7/08
21
Conrad, Glen E.
VA
Fourth
5/8/08
Source: CRS Judicial Nominations Database
Notes:
a. A numerical tally indicates a Senate roll call vote on confirmation (the yeas followed by the nays). “Voice” indicates that the Senate confirmed the nomination by voice vote.
b. For individuals nominated in a previous Congress, the values displayed in this column report the number of days which elapsed between the date of the first nomination and the date
of the final action on the most recent nomination in the 110th Congress.
c. Renomination of an individual first nominated in the 109th Congress (2005-2006).
d. Smith was withdrawn as a nominee for a seat vacated by Stephen Trott and renominated, the same day, for a seat vacated by Thomas Nelson.
e. The individual received a hearing in the 109th Congress on a nomination to the same position. For additional information, see Appendices 1 and 4 in CRS Report RL31868, U.S.
Circuit and District Court Nominations by President George W. Bush During the 107th-109th Congresses, by Denis Steven Rutkus, Kevin M. Scott, and Maureen Bearden.

---

CRS-11
Table 4. President George W. Bush’s Nominations to the U.S. District Courts During the 110th Congress
(January 3, 2007 - May 28, 2008)
Date
Days Elapsed,
No.
Name of Nominee
Court
Disposition
Votea
First Nomination
Nomination
Committee
Hearing
Final Action
to Final Actionb
Received
Action
1
Bailey, John P.c
N.WV
1/9/07
2/6/07
3/1/07
3/15/07
Confirmed
Voice
260
2
Baker, Valerie L.c
C.CA
1/9/07
d
1/25/07
2/1/07
Confirmed
Voice
273
3
Bryant, Vanessa L.c
CT
1/9/07
d
3/8/07
3/28/07
Confirmed
Voice
427
4
Donohue, Mary O.c
N.NY
1/9/07
9/6/07
Withdrawn
—
435
5
Farr, Thomas A.c
E.NC
1/9/07
6
Fischer, Nora B.c
W.PA
1/9/07
d
2/8/07
2/14/07
Confirmed
97-0
216
7
Frizzell, Gregory K.c
N.OK
1/9/07
d
1/25/07
2/1/07
Confirmed
99-0
239
8
Gutierrez, Philip S.c
C.CA
1/9/07
d
1/25/07
1/30/07
Confirmed
97-0
281
9
Howard, Marcia M.c
M.FL
1/9/07
d
2/8/07
2/15/07
Confirmed
93-0
253
10
Jarvey, John A.c
S.IA
1/9/07
d
2/8/07
3/8/07
Confirmed
95-0
253
11
Kapala, Frederick J.c
N.IL
1/9/07
3/13/07
4/25/07
5/8/07
Confirmed
91-0
154
12
Lioi, Sara E.c
N.OH
1/9/07
d
2/8/07
3/8/07
Confirmed
Voice
238
13
Mauskopf, Rosslyn R.c
E.NY
1/9/07
4/11/07
7/19/07
10/4/07
Confirmed
Voice
428
14
O’Grady, Liamc E.VA
1/9/07
5/10/07
5/24/07
7/9/07
Confirmed
88-0
341
15
O’Neill, Lawrence J.c
E.CA
1/9/07
d
1/25/07
2/1/07
Confirmed
97-0
183
16
Osteen, William L., Jr.c
M.NC
1/9/07
6/20/07
7/19/07
9/10/07
Confirmed
90-0
346
17
Ozerden, Halil S.c
S.MS
1/9/07
3/13/07
4/12/07
4/24/07
Confirmed
95-0
231

---

CRS-12
Date
Days Elapsed,
No.
Name of Nominee
Court
Disposition
Votea
First Nomination
Nomination
Committee
Hearing
Final Action
to Final Actionb
Received
Action
18
Reidinger, Martin K.c
W.NC
1/9/07
6/20/07
7/19/07
9/10/07
Confirmed
Voice
346
19
Rogan, James E.c
C.CA
1/9/07
20
Schroeder, Thomas D.c
M.NC
1/9/07
10/24/07
11/15/07
12/14/07
Confirmed
Voice
441
21
Settle, Benjamin H.c
W.WA
1/9/07
3/13/07
4/25/07
6/28/07
Confirmed
99-0
225
22
Van Bokkelen, Joseph S.
N.IN
1/9/07
4/11/07
5/3/07
6/28/07
Confirmed
Voice
170
23
Wood, Lisa G.c
S.GA
1/9/07
d
1/25/07
1/30/07
Confirmed
97-0
232
24
Wright, Otis D., IIc
C.CA
1/9/07
2/6/07
3/1/07
3/15/07
Confirmed
Voice
191
25
Wu, George H.c
C.CA
1/9/07
2/6/07
3/1/07
3/27/07
Confirmed
96-0
203
26
DeGiusti, Timothy D.
W.OK
2/15/07
6/20/07
7/19/07
8/3/07
Confirmed
96-0
169
27
Sullivan, Richard
S.NY
2/15/07
4/11/07
5/3/07
6/28/07
Confirmed
99-0
133
28
Aycock, Sharion
N.MS
3/19/07
7/19/07
9/6/07
10/4/07
Confirmed
Voice
199
29
Dugas, David R.
M.LA
3/19/07
30
Hall, James R.
S.GA
3/19/07
2/12/08
3/6/08
4/10/08
Confirmed
Voice
388
31
Honaker, Richard H.
WY
3/19/07
2/12/08
32
Jones, Richard A.
W.WA
3/19/07
7/19/07
9/6/07
10/4/07
Confirmed
Voice
199
33
Jonker, Robert J.c
W.MI
3/19/07
d
6/7/07
7/9/07
Confirmed
Voice
376
34
Maloney, Paul L.c
W.MI
3/19/07
d
5/24/07
7/9/07
Confirmed
Voice
376
35
Neff, Janet T.c
W.MI
3/19/07
5/10/07d
5/24/07
7/9/07
Confirmed
83-4
376
36
Sammartino, Janis L.
S.CA
3/19/07
6/20/07
7/19/07
9/10/07
Confirmed
90-0
175

---

CRS-13
Date
Days Elapsed,
No.
Name of Nominee
Court
Disposition
Votea
First Nomination
Nomination
Committee
Hearing
Final Action
to Final Actionb
Received
Action
37
Powell, William J.
N.WV
5/24/07
38
Thapar, Amul R.
E.KY
5/24/07
10/24/07
11/15/07
12/13/07
Confirmed
Voice
203
39
Laplante, Joseph N.
NH
6/13/07
10/24/07
11/15/07
12/14/07
Confirmed
Voice
184
40
Puryear, Gustavus A., IV
M.TN
6/13/07
2/12/08
41
O’Connor, Reed C.
N.TX
6/27/07
10/24/07
11/15/07
11/16/07
Confirmed
Voice
142
42
Dow, Robert M., Jr.
N.IL
7/18/07
9/25/07
10/4/07
11/13/07
Confirmed
86-0
118
43
Anderson, Stanley T.
W.TN
9/6/07
2/21/08
3/6/08
4/10/08
Confirmed
Voice
217
44
Mendez, John A.
E.CA
9/6/07
2/21/08
3/6/08
4/10/08
Confirmed
Voice
217
45
Miller, Brian S.
E.AR
10/16/07
2/12/08
3/6/08
4/10/08
Confirmed
88-0
177
46
Almond, Lincoln D.
RI
11/15/07
47
Davis, Mark S.
E.VA
11/15/07
4/3/08
4/24/08
48
Kays, David G.
W.MO
11/15/07
4/3/08
4/24/08
49
Novak, David J.
E.VA
11/15/07
4/3/08
50
Short, Carolyn P.
E.PA
11/15/07
51
Limbaugh, Stephen N., Jr.
E.MO
12/6/07
4/3/08
4/24/08
52
Snow, G. Murray
AZ
12/11/07
5/1/08
5/22/08
53
Suddaby, Glenn T.
N.NY
12/11/07
54
Lawrence, William T.
S.IN
2/14/08
5/1/08
5/22/08
55
Connolly, Colm F.
DE
2/26/08

---

CRS-14
Date
Days Elapsed,
No.
Name of Nominee
Court
Disposition
Votea
First Nomination
Nomination
Committee
Hearing
Final Action
to Final Actionb
Received
Action
56
Matsumoto, Kiyo A.
E.NY
3/11/08
57
Seibel, Cathy
S.NY
3/11/08
58
Murphy, Stephen J., III
E.MI
4/15/08
5/7/08
59
Gardephe, Paul G.
S.NY
4/29/08
60
Waddoups, Clark
UT
4/29/08
61
Anello, Michael M.
S.CA
4/30/08
Source: CRS Judicial Nominations Database
a. A numerical tally indicates a Senate roll call vote on confirmation (the yeas followed by the nays). “Voice” indicates that the Senate confirmed the nomination by voice vote.
b. For individuals nominated in a previous Congress, the values displayed in this column report the number of days which elapsed between the date of the first nomination and the date
of the final action on the most recent nomination in the 110th Congress.
c. Renomination of an individual first nominated in the 109th Congress (2005-2006).
d. The individual received a hearing in the 109th Congress on a nomination to the same position. For additional information, see Appendices 5 and 8 in CRS Report RL31868, U.S.
Circuit and District Court Nominations by President George W. Bush During the 107th-109th Congresses, by Denis Steven Rutkus, Kevin M. Scott, and Maureen Bearden.

---

CRS-15
Table 5. President George W. Bush’s Nominations to the U.S. Court of International Trade During the 110th Congress
(January 3, 2007 - May 28, 2008)
Date
Days Elapsed, First
No.
Name of Nominee
State
Court
Nomination to Final
Nomination
Committee
Hearing
Final Action
Action
Received
Action
Thus far, during the 110th Congress, there have been no nominations to this court.
Source: CRS Judicial Nominations Database

---

CRS-16
Table 6 presents the total number of persons nominated by President Bush to
each category of lower Article III court during his entire presidency. The table also
breaks down each numerical total, showing, as of the date listed, the number of
nominees whose most recent nominations were (1) confirmed; (2) pending in the
Senate; (3) returned to the President, at the end of a Congress or at the start of a
Senate recess of more than 30 days, and not re-submitted; or (4) withdrawn by the
President. This table counts nominees to a particular judgeship only once, even if
they were nominated to their judgeship more than once.16
Table 6. President George W. Bush’s Nominees to Article III
Lower Courts: A Numerical Breakdown According to Status of
Their Most Recent Nomination
(January 20, 2001 - May 28, 2008)
Returned,
Court
Confirmed
Pending
Not
Withdrawn
Total
Renominated
Courts of Appeals
59
10
8
5
82
District Courtsa
241
22
1
4
268
Court of
2
0
0
0
2
International Trade
Total
302
32
9
9
352
Source: CRS Judicial Nominations Database
a. Does not include three nominees to the territorial district courts, all of whom were confirmed prior
to the 110th Congress. Judges on those courts are appointed to renewable 10-year terms. There
have been no nominations to the territorial district courts in the 110th Congress.
Table 7 places the judicial nominee numbers of the George W. Bush presidency
in the context of the last five Presidents. Comparison of the nominee statistics of the
two-term Presidents in this group (Reagan, Clinton, and George W. Bush) reveal the
following. The percentages of George W. Bush’s nominees confirmed to the circuit
courts and district courts (72.0% and 89.9%, respectively, as of May 28, 2008) are
relatively close to the confirmation percentages for the Clinton nominees (72.2% for
circuit courts and 87.1% for district courts), but well below those for Reagan
nominees (88.3% for circuit courts and 94.8% for district courts). The number of
Bush nominees confirmed to the circuit courts (59) is somewhat below the number
of confirmed Clinton circuit nominees (65) and well below the number of confirmed
Reagan circuit nominees (83), while the number of Bush nominees confirmed to the
district courts (241) is well below the confirmed district court nominee numbers of
both Presidents Clinton and Reagan (305 and 290, respectively).
16 Some of President Bush’s nominees were nominated to a circuit or district judgeship more
than once within a Congress, or nominated to the judgeship in more than one Congress. For
a listing of these nominees, as well as other Presidents’ nominees to the circuit and district
courts whose nominations were resubmitted from 1977 through 2006, See CRS Report
RL33839, Returns and Resubmissions of Nominees to the U.S. Courts of Appeals and
District Courts, 1977-2006, by Kevin M. Scott.

---

CRS-17
Table 7. Article III U.S. District Courts and Courts of Appeals: Number of Nominees, Number Confirmed, and Percent
of Nominees Confirmed, Five Most Recent Presidents
(as of May 28, 2008)
Court of Appeals
District Courtsa Totalb
President
Confirmed
Nominees
Percent
Confirmed
Nominees
Percent
Confirmed
Nominees
Percent
Jimmy Carter
56
60
93.3%
202
218
92.7%
258
278
92.8%
Ronald Reagan
83
94
88.3%
290
306
94.8%
373
400
93.3%
George H.W. Bush
42
53
79.2%
148
191
77.5%
190
244
77.9%
Bill Clinton
65
90
72.2%
305
350
87.1%
370
440
84.1%
George W. Bush
59
82
72.0%
241
268
89.9%
300
350
85.7%
(through May 28, 2008)
Source: CRS Judicial Nominations Database
Notes:
a. The district court columns of this table account only for nominees to Article III district court judgeships, and not those to territorial district courts in the U.S. Virgin Islands, Guam,
and the Northern Mariana Islands. As a result, the numbers in these columns differ somewhat from the district court data presented in Table 3 of CRS Report RL31868, U.S.
Circuit and District Court Nominations by President George W. Bush During the 107th-109th Congresses, which account for nominees to the territorial courts.
b. Does not include nominations to the Court of International Trade (an Article III Court since 1980).
c. Through May 28, 2008.

---

CRS-18
Appendix. The Appointment Process for
Nominations to Article III Judgeships

Under the Constitution of the United States, the President and the Senate share
the responsibility for filling vacancies in the federal judiciary.17 While it is the
President who nominates persons to fill federal judgeships, the appointment of each
nominee also requires Senate confirmation. Although not mentioned in the
Constitution, the Senate Judiciary Committee also plays an important role midway
in the process — after the President selects, but before the Senate as a whole
considers, the nominee. It is the Judiciary Committee in the Senate that has
committee jurisdiction over most federal judicial nominations — namely, those to
the Supreme Court, the courts of appeals, the district courts (including the territorial
district courts), the U.S. Court of International Trade, and the U.S. Court of Federal
Claims.18

The need for the President to make a nomination to an Article III court
judgeship arises when a vacancy occurs on the court, due to the death, retirement, or
resignation of a judge (or when a judge announces the intention to retire or resign).19
In considering judicial candidates for possible nomination, the President frequently
receives recommendations from U.S. Senators.20 By longstanding custom, dating
back to the mid-1800s, Senators of the President’s party have provided Presidents
such advice, recommending candidates for judgeships situated in their states or
linked by tradition to their states.21 Also by custom, Senators not of the President’s
17 Article II, Section 2, clause 2 of the Constitution provides that the President “shall
nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of
the supreme Court, and all other Officers of the United States, whose Appointments are not
herein otherwise provided for, and which shall be established by Law....”
18 Nominations to the Court of Appeals for the Armed Forces fall within the jurisdiction of
the Senate Armed Services Committee; nominations to the U.S. Tax Court fall within the
Jurisdiction of the Senate Finance Committee; and nominations to the Court of Appeals for
Veterans Claims fall within the jurisdiction of the Senate Veterans’ Affairs Committee.
19 A vacancy also would occur if a judge were removed by Congress through the
impeachment process, but historically such occurrences have been extremely rare.
Specifically, in our nation’s history, “there have been 15 impeachment trials in the Senate,
11 against judges. Seven trials have resulted in convictions, all against judges.” CRS
Report RL32935, Congressional Oversight of Judges and Justices, by Elizabeth B. Bazan
and Morton Rosenberg.
20 See CRS Report RL34405, Role of Home State Senators in the Selection of Lower Federal
Court Judges, by Denis Steven Rutkus.
21 A scholar on the Senate’s role in judicial appointments, writing in 1953, described the
“well-established custom, which has prevailed since about 1840,” wherein U.S. district
judges “are normally selected by senators from the state in which the district is situated,
provided they belong to the same party as the President.” By contrast, the President was
said to have “a much freer hand in the selection of judges to the circuit courts of appeals,
whose districts cover several states....” Joseph P. Harris, The Advice and Consent of the
Senate (Berkeley, CA: University of California Press, 1953; reprint, New York: Greenwood
Press, 1968), p. 314, (page citations are to the reprint edition). See also, for more recent
(continued...)

---

CRS-19
party play a consultative role and may convey to the President their views about
candidates under consideration for judgeships in their states.22 The judgeships for
which a Senator ordinarily recommends nominees, or is consulted, are those in the
U.S. district court or courts which geographically fall within the Senator’s state and
the U.S. court of appeals circuit of which the Senator’s state is a geographic part —
provided the circuit judgeship historically has been associated with the Senator’s
state.23
After selecting someone to fill a judicial vacancy, the President formally submits
a nomination in writing to the Senate.24 Usually on the same day it is received by the
Senate, the nomination is referred to the Judiciary Committee. The committee’s first
formal public step is to hold a hearing on a nomination. The committee subsequently
meets again to vote on whether to report the nomination to the full Senate. A
committee vote to report (even a vote to report with an unfavorable recommendation)
sends the nomination forward to be considered by the Senate as a whole, while a vote
against reporting (historically, a very rare occurrence) prevents the nomination from
going forward, and in effect defeats the nomination in committee. The next step in
the appointment process occurs when the Senate votes to confirm or disapprove the
nomination. A vote to confirm requires a simple majority of Senators present and
voting.
21 (...continued)
discussion of the continuing role played by Senators in recommending judicial candidates,
Sheldon Goldman, Picking Federal Judges: Lower Court Selection from Roosevelt Through
Reagan (New Haven, CT: Yale University Press, 1997) (in each presidency chapter, under
the heading “Senators and Selection”).
22 See CRS Report RL32013, The History of the Blue Slip in the Senate Committee on the
Judiciary, 1917-Present, by Mitchel A. Sollenberger. See also Elliot E. Slotnick, “A
Historical Perspective on Federal Judicial Selection,”Judicature, vol. 86, July-August 2002,
where, at p. 13, the author observes that the blue slip procedure of the Senate Judiciary
Committee “has worked to ensure that home state senators of both parties, whether or not
they are of the president’s party, have some say when judges are being nominated from their
state.”
23 A President is generally believed inclined to avoid selecting a judicial nominee opposed
by a home-state Senator of the President’s party — given the custom of “senatorial
courtesy,” wherein the Senate, as a collegial body, customarily supports Senators in disputes
with the President over judicial appointments in their state. Two scholars have written that,
as a result of this custom, Senators of the President’s party “who object to a district
judgeship in their home state have a virtual veto over the nomination.” Robert A. Carp and
Ronald Stidham, Judicial Process in America, 3d ed. (Washington: CQ Press, 1996), p. 247.
24 For a detailed examination of the procedures followed by Senate committees and the full
Senate in considering nominations in general, see CRS Report RL31980, Senate
Consideration of Presidential Nominations: Committee and Floor Procedure, by Elizabeth
Rybicki. For a diagrammatic overview of procedures followed by the Senate Judiciary
Committee and the full Senate in considering district and circuit court nominations, see CRS
Report RS21735, U.S. District and Circuit Court Nominations: A Diagram of Customary
Procedures, by Mitchel A. Sollenberger.

---

CRS-20
If the Senate votes to confirm the nomination, the Secretary of the Senate then
attests to a resolution of confirmation and transmits it to the White House.25 In turn,
the President signs a document, called a commission, officially appointing the
individual to the court. The signed commission is then “returned to the Justice
Department for engraving the date of appointment (determined by the actual day the
president signs the commission) and for the signature of the attorney general and the
placing of the Justice Department seal.”26 Once the President has signed the
commission, the incoming judge is eligible to be sworn into office. The new judge
actually takes two oaths of office — a judicial oath, as required by the Judiciary Act
of 1789, and a constitutional oath, which, as required by Article VI of the
Constitution, is administered to Members of Congress and all executive and judicial
officers.

As with nominations in general, judicial nominations sometimes fail to advance
through each procedural step in the appointment process. After referral to
committee, a nomination might not receive a hearing or, after receiving a hearing,
might not receive a committee vote on whether it should be reported. Even if
favorably reported by committee, a nomination might not receive a vote by the
Senate on whether to confirm. The majority leader might not schedule a vote, or
some Senators might oppose taking such a vote and a “super-majority” of three-fifths
of the full membership of the Senate would be needed to invoke cloture on the
nomination.27 If a nomination fails to receive a Senate vote on confirmation, it
ultimately will be either withdrawn by the President or returned to the President by
the Secretary of the Senate upon a Senate adjournment or recess of more than 30
days.28 The Senate may, by unanimous consent, carry nominations over a recess of
more than 30 days.
25 If, on the other hand, the Senate votes in the negative on whether to confirm, the
nomination is defeated, and a resolution of disapproval is forwarded to the President.
26 Sheldon Goldman, Picking Federal Judges: Lower Court Selection from Roosevelt
Through Reagan (New Haven, CT: Yale University Press, 1997), p. 12.
27 See CRS Report RL32878, Cloture Attempts on Nominations, by Richard S. Beth and
Betsy Palmer.
28 Rule XXXI, paragraph 6, Standing Rules of the Senate, provides, in part, that “if the
Senate shall adjourn or take a recess for more than thirty days, all nominations pending and
not finally acted upon at the time of taking such adjournment or recess shall be returned by
the Secretary to the President and shall not again be considered unless they shall again be
made to the Senate by the President.”

---