U.S. Circuit and District Court Nominations: Rejections by the Senate and Votes by the Senate Judiciary Committee Other Than To Report Favorably, 1939-2007

U.S. Circuit and District Court Nominations: Rejections by the Senate and Votes by the Senate Judiciary Committee Other Than To Report Favorably, 1939-2007

Order Code RS21734
Updated February 26, 2008
U.S. Circuit and District Court Nominations:
Rejections by the Senate and Votes by the
Senate Judiciary Committee Other Than To
Report Favorably, 1939-2007
Kevin M. Scott
Analyst on the Federal Judiciary
Government and Finance Division
Denis Steven Rutkus
Specialist on the Federal Judiciary
Government and Finance Division
Summary
Once a nomination to a U.S. district court or circuit court of appeals judgeship is
submitted to the Senate by the President, the Senate almost invariably refers it to the
Senate Judiciary Committee. If the Judiciary Committee schedules a vote on a nominee,
it usually will vote on a motion to report the nomination favorably. However, the
committee could also vote on a motion to report without recommendation, to report
unfavorably, or to table the nomination. If the committee votes to report — whether
favorably, without recommendation, or unfavorably — the nomination moves to the full
Senate, which, if it takes final action on the nomination, votes on whether to confirm or
disapprove.
Between 1939 and 2007, the Senate Judiciary Committee voted other than
favorably on 18 district or circuit court judicial nominations. In one other instance, the
committee reported a district court nomination favorably, but the Senate rejected the
nomination. This report lists the votes cast by the Judiciary Committee and the Senate
on each of these 19 nominations and identifies senatorial courtesy, ideological
disagreement, and concern over nominees’ qualifications as among the circumstances
that led to committee consideration of actions other than a favorable report. Senate and
Senate Judiciary Committee actions on judicial nominations are discussed more
generally in CRS Report RL31635, Judicial Nomination Statistics: U.S. District and
Circuit Courts, 1977-2003, by Denis Steven Rutkus and Mitchel A. Sollenberger, and
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 as events warrant.

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Although the Senate has confirmed most of the thousands of U.S. circuit court and
district court nominations submitted to it, some nominations do not receive Senate
confirmation.1 Neither the Judiciary Committee nor the full Senate is compelled to act
on the nomination, and nominations that receive no action are eventually returned to the
President.
Once the President submits a judicial nomination to the Senate, it almost invariably
is referred to the Judiciary Committee.2 The committee may then hold a hearing on the
nomination. After the hearing, the committee has four basic options: “It may report the
nomination to the Senate favorably, unfavorably, or without recommendation, or it may
choose to take no action at all.”3 Typically, if the committee votes on the nomination,
it votes to report favorably; however, in a small number of cases, the committee has voted
to report the nomination either unfavorably or without recommendation. If a majority of
the committee agrees to any one of the motions to report, the nomination moves to the full
Senate. (The nomination fails to be reported on a tie vote.) By contrast, the nomination
remains in committee if the committee votes against reporting, if there is no committee
vote on the nomination, or if the committee votes to table the nomination.
Once a nomination is reported to the Senate by the Judiciary Committee, the Senate
can consider the nomination.4 If the Senate disapproves the nomination, it is returned to
the President with a resolution of disapproval.5 If a judicial nomination does not receive
a Senate vote, the nomination ultimately will either be withdrawn by the President or
1 This report was originally prepared by Mitchel A. Sollenberger, Analyst in American National
Government at CRS. For statistics on the number of confirmations during the 1945-2007 time
period, see CRS Report RL32122, Judicial Nomination Statistics: U.S. District and Circuit
Courts, 1945-1976, by Mitchel A. Sollenberger; CRS Report RL31635, Judicial Nomination
Statistics: U.S. District and Circuit Courts, 1977-2003, by Denis Steven Rutkus and Mitchel A.
Sollenberger; 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; and CRS Report RL33953, Nominations to Article III Lower Courts by
President George W. Bush During the 110th Congress, by Denis Steven Rutkus, Kevin M. Scott,
and Maureen Bearden. For information on judicial nominations from 1939 to 1945, consult the
relevant volumes of the Journal of the Executive Proceedings of the Senate.
2 “Senate Rule XXXI provides that nominations shall be referred to appropriate committees
‘unless otherwise ordered.’ In a few instances, by unanimous consent, the Senate has confirmed
nominations without referral to a committee, particularly when the nominee is a current or former
Senator.” CRS Report RL31980, Senate Consideration of Presidential Nominations: Committee
and Floor Procedure, by Elizabeth Rybicki (under heading “Receipt and Referral”). (Hereafter
cited as Rybicki, Senate Consideration of Presidential Nominations.)
3 Ibid. (under heading “Reporting”).
4 Prior to a final vote on the nomination, the Senate can recommit the nomination to the Judiciary
Committee. In addition, debate on the nomination is subject to cloture. Ibid. (under heading
“Consideration and Disposition”). Such procedural actions, however, are not considered in this
report.
5 According to Senate Rule XXXI, rejected nominations “shall not be returned by the Secretary
to the President until the expiration of the time limit for making a motion to reconsider,” which
is three days after the confirmation vote is held.

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returned to the President by the Secretary of the Senate upon a Senate adjournment or
recess of more than 30 days.6
This report identifies, from the 76th Congress (1939-1941)7 through 2007 (the first
session of the 110th Congress), 18 U.S. circuit court of appeals or district court
nominations on which the Senate Judiciary Committee voted other than to report
favorably and one nomination where the Judiciary Committee voted to report with a
favorable recommendation but the nomination was rejected by the Senate.8 Specifically,
Table 1, below, presents the nominations to the courts of appeals and district courts in
separate sections. Within the two sections, nominations are arranged chronologically.
From left to right, columns one, two, and three identify the Congress, nominee, and court
of each nominee. Columns four through seven provide the Judiciary Committee vote on
each nomination, stating the type of vote, vote breakdown, and date of the vote. Column
eight provides information concerning what occurred in the Senate after the Judiciary
Committee voted.
Among the seven court of appeals nominations listed in Table 1, five were never
reported out of the Judiciary Committee; four of those nominations were returned to the
President and one was withdrawn by the President. The remaining two nominations were
reported without recommendation; one (Manion) was confirmed and one (Liebeler) was
returned by the Senate. Of the 12 district court nominations listed in Table 1, four
(including the nomination of William Poff, which was tabled) were never reported out of
the Judiciary Committee; one of those nominations was returned and three were
withdrawn by the President. Two nominations were reported to the Senate favorably; one
(Collins) was confirmed, while the other (White) was rejected. One nomination (Holmes)
was reported to the Senate without recommendation; that nomination was confirmed by
the Senate. Five nominations were reported to the Senate unfavorably; all five were
rejected by the Senate.
Senatorial courtesy was the stated reason for rejection in six of the first seven cases
of Judiciary Committee votes on judicial nominations that were other than to report
favorably.9 Floyd H. Roberts, nominated to be U.S. district court judge for the Western
District of Virginia, was the first judicial nominee reported unfavorably by the committee
6 The Senate may, by unanimous consent, hold nominations over recesses of more than 30 days.
Senators may exempt from unanimous consent one or more pending nominations, and have only
rarely insisted on the return of all pending nominations. Rybicki, Senate Consideration of
Presidential Nominations, p. 13.
7 The 76th Congress was the earliest in which Judiciary Committee votes could be found in the
Congressional Record or the Senate Committee on the Judiciary Legislative Calendar.
8 See, in Table 1, the nomination of Ronnie White to the U.S. District Court for the Eastern
District of Missouri.
9 The American Congressional Dictionary defines senatorial courtesy as “[t]he Senate’s practice
of declining to confirm a presidential nominee for an office in the state of a senator of the
president’s party unless that senator approves. Sometimes called ‘the courtesy of the Senate,’
the practice is a customary one and not always adhered to. A senator sometimes invokes the
custom by declaring that the nominee is personally obnoxious or personally objectionable to
him.” See Walter Kravitz, Congressional Quarterly’s American Congressional Dictionary
(Washington: CQ Press, 2001), p. 231.

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and rejected by the Senate within the 1939-2007 time period. The committee adversely
reported Roberts in 1939 on the grounds that his nomination was “personally offensive”
to the two Virginia Senators.10 As was the tradition under senatorial courtesy at that time,
Roberts was adversely reported to the Senate, where he was rejected by a vote of 72 to 9.
In each of the other five cases before 1951 in which senatorial courtesy was the stated
reason for objecting to a judicial nomination, the opposing Senator stated that the
nominee was “personally obnoxious.”11 In one instance, the nomination was not reported
out of committee.12 The other four nominations were reported adversely and rejected by
voice vote in the Senate.13
Between 1951 and 1978, no judicial nominations were reported without
recommendation or unfavorably. During that time, one nomination, that of William Poff,
to the U.S. District Court for the Western District of Virginia, was laid on the table by the
Senate Judiciary Committee based on senatorial courtesy.14 Since 1978, Senators’
objections to nominations have rested largely on the perceived ideological orientation of
judicial nominees, the professional qualifications of the nominees, or both.15 For
example, Daniel Manion, nominated by President Reagan to the Seventh Circuit Court
of Appeals, was criticized for lacking “the record of distinction and achievement that was
expected of appointees to the courts of appeals,”16 while his supporters “argued that
opposition to his nomination was based on his conservative views and his activities with
his father,”17 who had co-founded the John Birch Society. Arguments made in support of
and in opposition to the Manion nomination were similar to arguments made about other
nominees whose nominations received a vote to report other than favorably since 1978.
10 National Archives and Records Administration, Record Group 46, Records of the U.S. Senate,
76th Cong., Records of Executive Proceedings, Nomination Files, Judiciary Committee, Hearings
on Nomination of Floyd H. Roberts (1939), p. 84.
11 The nominees were James V. Allred, M. Neil Andrews, Carroll D. Switzer, Joseph Drucker,
and Cornelius J. Harrington.
12 National Archives and Records Administration, Record Group 46, Records of the U.S. Senate,
78th Cong., Records of Executive Proceedings, Nomination Files, Judiciary Committee, James
V. Allred, Blue Slip (1943); and Hearings on Nomination of James V. Allred (1943), pp. 5-7.
13 See Congressional Record, 81st Cong., 2nd sess., August 9, 1950, pp. 12104-12106; and
Congressional Record, 82nd Cong., 1st sess., October 9, 1951, pp. 12838-12840.
14 Sheldon Goldman, Picking Federal Judges: Lower Court Selection from Roosevelt through
Reagan (New Haven: Yale University Press, 1997), p. 210.
15 See, e.g., Lee Epstein and Jeffrey A. Segal, Advice and Consent: The Politics of Judicial
Appointments (New York: Oxford University Press, 2005), ch. 4.
16 Sheldon Goldman, Picking Federal Judges: Lower Court Selection from Roosevelt through
Reagan (New Haven: Yale University Press, 1997), p. 310.
17 Ibid.

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Table 1. U.S. District and Circuit Court of Appeals Judicial Nominations: Rejection Votes by the Senate or Votes by
the Senate Judiciary Committee Other Than To Report Favorably, 1939-2007
Votes and Dates of Judiciary Committee Motions
Circuit/
Congress
Nominee
Outcome of Nomination
District
Report Without
Report
Table
Report Favorably
Recommendation
Unfavorably
Nominations to the Circuit Courts of Appeals
78th
Allred, James V.
Fifth
—
9-9, 03/22/43a
—
—
Returned, 07/08/43
99th
Manion, Daniel A.
Seventh
—
9-9, 05/08/86b
11-6, 05/08/86b
—
Confirmed (48-46), 06/26/86
100th
Liebeler, Susan W.
Federal
—
6-7, 02/23/88c
8-5, 02/23/88c
—
Returned, 10/22/88
100th
Siegan, Bernard H.
Ninth
—
6-8, 07/14/88 d
7-7, 07/14/88 d
—
Withdrawn, 09/16/88
102nd
Ryskamp, Kenneth L.
Eleventh
—
6-8, 04/11/91e
7-7, 04/11/91e
—
Returned, 08/02/91
107th
Pickering, Charles W., Sr.
Fifth
—
9-10, 03/14/02f
9-10, 03/14/02f
9-10, 03/14/02f
Returned, 11/20/02
107th
Owen, Priscilla R.
Fifth
—
9-10, 09/05/02g
9-10, 09/05/02g
9-10, 09/05/02g
Returned, 11/20/02
Nominations to the District Courts
76th
Roberts, Floyd H.
W.VA
—
3-14, 02/01/39h
—
14-3, 02/01/39h
Rejected (72-9), 02/06/39
79th
Margold, Nathan R.
DC
—
6-6, 07/30/45i
—
—
Returned, 08/01/45
81st
Switzer, Carroll D.
S.IA
—
0-10, 07/31/50j
—
10-0, 07/31/50j
Rejected (voice vote), 08/09/50
81st
Andrews, M. Neil
N.GA
—
1-9, 07/31/50k
—
9-1, 07/31/50k
Rejected (voice vote), 08/09/50
3-5, 09/17/51l
82nd
Harrington, Cornelius J.
N.IL
—
2-6, 09/17/51l
—
Rejected (voice vote), 10/09/51
10/08/51m
3-4, 09/17/51l
82nd
Drucker, Joseph
N.IL
—
2-6, 09/17/51l
—
Rejected (voice vote), 10/09/51
10/08/51m
94th
Poff, William B.
W.VA
9-0, 05/05/76n
—
—
—
Withdrawn, 06/07/76
5-5, 04/14/78o
95th
Collins, Robert F.
E.LA
—
—
—
Confirmed (voice vote), 05/17/78
13-1, 05/16/78o
96th
Winberry, Charles B., Jr.
E.NC
—
6-8, 03/04/80p
—
—
Withdrawn, 08/06/80
99th
Sessions, Jefferson B.
S.AL
—
8-10, 06/05/86q
9-9, 06/05/86q
—
Withdrawn, 07/31/86

CRS-6
Votes and Dates of Judiciary Committee Motions
Circuit/
Congress
Nominee
Outcome of Nomination
District
Report Without
Report
Table
Report Favorably
Recommendation
Unfavorably
106th
White, Ronnie
E.MO
—
12-6, 07/22/99 r
—
—
Rejected (45-54), 10/05/99 r
108th
Holmes, J. Leon
E.AR
—
—
10-9, 05/01/03 s
—
Confirmed (51-46), 07/06/04
Source: CRS Judicial Nominations Database.
Notes:
a. Legislative and Executive Calendar, Committee on the Judiciary, 78th Cong., 1st sess., p. 5.
b. Eric Effron, “Setback for Manion,” The National Law Journal, May 19, 1986, p. 2.
c. Christopher Ladd and Terence Moran, “Nominees Liebeler, Siegan Still Have Long Way to Go,” Legal Times, Feb. 29, 1988, p. 4.
d. Linda Greenhouse, “Panel Rejects Court Nominee, Ending Bitter Battle,” The New York Times, July 15, 1988, p. A12.
e. Neil A. Lewis, “Committee Rejects Bush Nominee to Key Appellate Court in South,” The New York Times, Apr. 12, 1991, p. A1.
f. Jennifer A. Dlouhy, “Democrats Defeat Pickering on Party-Line Vote,” CQ Daily Monitor, Mar. 15, 2002, p. 1. Pickering was renominated in the 108th Congress, and received a
recess appointment to the Fifth Circuit Court of Appeals on Jan. 16, 2004.
g. Jennifer A. Dlouhy, “Republicans Vow Revenge as Owen Nomination is Defeated,” CQ Daily Monitor, Sept. 9, 2002, p. 8. Owen was renominated in the 108th and 109th Congresses,
and was confirmed on May 25, 2005.
h. Congressional Record, 80th Cong., 1st sess., July 1, 1947, p. 7990.
i. Local Section, “Judge Margold Dies at 48; Funeral Will Be Held Today,” Washington Post, Dec. 17, 1947, p. B2.
j The Legislative and Executive Calendar notes that Chairman Pat McCarran reported Andrews out of committee adversely. CRS assumes that the final committee vote was for a motion
to report unfavorably. For information concerning the committee vote, see “4 Truman Choices Rejected Sharply In Senate Rebuffs,” The New York Times, Aug. 10, 1950, p.
1.
k. Ibid.
l. “Senate Unit Blocks Truman on Judgeships,” Washington Post, Sept. 18, 1951, p. 12.
m. The Legislative and Executive Calendar notes that on Sept. 17, 1951, motions to report favorably for the Drucker and Harrington nominations were defeated and that motions to
report unfavorably were also defeated; however, on Oct. 8, 1951, the calendar notes that the committee disapproved the nominations of Harrington and Drucker but then reported
both nominations out on the same day. The Oct. 8 vote, although not stated in the calendar, tends to suggest that the committee considered a second motion to report unfavorably.
See Legislative and Executive Calendar, Committee on the Judiciary, 82nd Cong., 1st sess., p. 553. News accounts suggest that the Senate rejected the nominations of Drucker
and Harrington to prevent President Truman from granting them recess appointments. See “Two Truman Choices Are Rejected: Senate Supports Douglas in Dispute Over
Judgeships,” Washington Post, Oct. 10, 1951, p. 10.
n. Legislative and Executive Calendar, Committee on the Judiciary, 94th Cong., 2nd sess., p. 247. Congressional Quarterly, Inside Congress, “‘Senatorial Courtesy’ Derails Ford
Judgeship Nomination,” Congressional Quarterly, May 8, 1976, p. 1124.
o. Legislative and Executive Calendar, Committee on the Judiciary, 95th Cong., 2nd sess., p. 212.
p. Legislative and Executive Calendar, Committee on the Judiciary, 96th Cong., 1st sess., p. 206.
q. “Heflin Votes Crucial in Defeat of Denton-Backed Judicial Nomination,” The Associated Press, June 6, 1986.
r. Sean Scully, “Senate Rejects Clinton Bench Nominee; Black Missouri Judge Had Opposed Death Penalty; Democrats Charge Racism,” The Washington Times, Oct. 6, 1999, p. A6.
s. Congressional Record, daily edition, vol. 149, May 1, 2003, p. D436.