By Laura Bejder, January 16, 2023
In 2003, when Edward G. Prado was confirmed as a US circuit judge of the Fifth Circuit Court of Appeals, 97 out of 100 senators across party lines voted to confirm him.
15 years later, when his successor was appointed, the picture had changed. The new judge, Andrew S. Oldham was confirmed on a narrow all-republican majority of 50 yea votes against 49 democratic and independent nay votes.
This is not as much an expression of different candidate popularity as an example of a development towards a more politically divided Senate on the confirmation of federal judges.
An analysis of all confirmations of federal court judges' confirmations shows that from 2001 and up until the 115th Congress – the first under the presidency of Donald Trump – the average number of yea votes to confirm judges for each congress swung between 80 and 91. Since then the number has dropped, first to an average of 61 yea votes during the 115th Congress and the latest to only 51 throughout the 117th Congress that ended in January 2023.
The final confirmation of federal judges happens in the full Senate. A nominee is confirmed or rejected by a simple majority vote, meaning that more than half of the ballots cast should be for. Thus, some federal judges have been confirmed with fewer than 50 votes because some senators didn’t vote at all.
There are historical examples where the Senate has confirmed judges on narrow, partisan majorities. When Chief Circuit Judge of the Sixth Circuit Jeffrey Stuart Sutton was nominated in 2003, 52 senators voted to confirm him. Only two of them were Democrats. Similarly, President Obama’s first judicial nominee, David Hamilton was confirmed with 59 almost exclusively Democratic votes.
But in recent years, a few examples have turned into a trend. During the second Congress under President Trump, 15 judges were confirmed without a single democratic vote. And in the most recent congress, five Biden-nominated judges were confirmed without a Republican vote.
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