No federal court has been missing a judge for longer than the Eastern District of North Carolina, where a vacancy has stayed open for more than a decade.
President Obama has nominated two women in recent years to fill the seat – most recently former N.C. Supreme Court Justice Patricia Timmons-Goodson – with no success so far.
Earlier this month when several Democratic U.S. senators tried to bring various judicial nominees forward for confirmation, North Carolina Sen. Thom Tillis shot each of them down. The Senate is now out of session until September.
The U.S. Constitution gives the Senate responsibility for confirming federal judges nominated by the president. But Tillis said the Senate has filled more judicial vacancies under President Obama than under the Republican he replaced and that senators should move on to other issues.
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“Any reasonable, objective review of the record shows that President Obama has been treated much more fairly than his predecessor, George W. Bush,” Tillis said.
We here at PolitiFact are big fans of reasonable, objective reviews of facts. But we’re not in the business of fact-checking opinions – like who has been treated more fairly. So we won’t put this claim on our Truth-O-Meter.
Still, this was an interesting point that we wanted to explore further. How do the two presidents’ successes with judicial nominees stack up?
Number of judges confirmed
The fairness claim isn’t unique to Tillis. Senate Majority Leader Mitch McConnell made virtually the same argument a few months ago during another judicial debate.
Tillis is right about the raw numbers. Even with about six months left in office, Obama has had a few more federal judges confirmed (329) than Bush had during his entire two terms (326).
Yet a judicial expert we spoke with, Brookings Institute visiting fellow Russell Wheeler, said that argument is “simply not the point.”
The Constitution doesn’t require the Senate to confirm as many judges as it confirmed for the previous president, Wheeler said. It simply requires the Senate to confirm judges. And there have been more openings under Obama.
However, Tillis spokesman Daniel Keylin said the point stands.
“Senator Tillis was explicitly comparing the number of judges confirmed during the totality of the Barack Obama and George W. Bush administrations,” he said. “Those figures make it clear that President Obama has had more judges confirmed than President Bush did.”
The question of fairness
If fair treatment is the Senate allowing the president’s nominees to go through without much fighting and stalling, neither Bush nor Obama was treated totally fairly.
Bush left office with 55 judicial positions still vacant, and the number of vacancies has only risen under Obama. By the end of his first term, there were 83 vacancies. As of July 19, there were 90.
In a recent study, Wheeler compared Bush’s and Obama’s success getting judges nominated when their party was the minority party in the Senate. Their success when working with political opponents could be a pretty good measure of fairness.
For both presidents, the last two years of their terms saw their party lose control of the Senate. So Wheeler compared the 18 month period starting with their seventh year in office.
For Obama, that was January 2015 until this June. For Bush, it was January 2007-June 2008. He also studied the same periods for Bill Clinton and Ronald Reagan.
Breaking down the numbers
Judicial vacancies skyrocketed under Obama and a Republican Senate, growing by 112 percent at the district court level and 29 percent at the appeals court level.
Under Bush and a Democratic Senate, on the other hand, vacancies decreased by 10 percent at the district court level and 15 percent at the appeals court level.
Furthermore, the analysis showed, Democrats under Bush were about twice as likely to confirm judges than Republicans under Obama, for both the district and appeals court level.
Despite the Senate’s stonewalling, Obama isn’t totally blameless for the high vacancy rates. Of the 90 vacancies, 32 are lacking a nominee from the White House, according to data compiled by the liberal website Alliance For Justice.
Most of those have been vacant less than a year, including 12 that have been vacant for only a few months. Nevertheless, even a lengthy vacancy doesn’t guarantee action from either the president or the Senate.
And of the country’s 35 vacancies that have existed for more than two years, the blame falls more on the Senate than on Obama. Nine are lacking nominees, while 26 are held up in the Senate.
Supreme Court differences
Obama and Bush each had two Supreme Court justices confirmed, as well as a third nominee whose Senate reception did not go smoothly.
Under Bush, nominee Harriet Miers withdrew after GOP senators questioned her lack of appellate experience and constitutional law knowledge.
Under Obama, nominee Merrick Garland is being held up, also by GOP senators. They say the next president should fill the seat, not Obama.
PolitiFact has previously checked several claims used to justify the delay on Garland, finding half-truths or outright falsehoods from Republican leaders including Mitch McConnell, Ted Cruz, Paul Ryan and Marco Rubio.