Partisan Makeup of the Bench
Gryski, Gerard, Judicature
At the start of the 108th Congress, 49.4 percent of active judges on the lower federal courts were appointed by Republican presidents. By the time Congress adjourned, that figure stood at 52.5 percent. To a considerable degree, the pattern observed for the 107th Congress is replicated in the 108th: a Republican president replacing judges appointed by a Republican predecessor. This fits the historical pattern in two respects.1 First, the bulk of appointment opportunities comes from judges who take senior status under a partisan-compatible president. Of the 113 judges who retired during George W. Bush's first term, 90 (80 percent) were appointed by Republican presidents. The figures for the district and courts of appeals are 83 percent and 70 percent, respectively. second, there tends to be something of a generational effect, as the overall complement of departing judges in any given administration is dominated by the appointees of a specific predecessor of the same party as the sitting president. Over the course of Bush's first term, 49 percent of the departing judges were appointed by Ronald Reagan.
Table 1 underscores the salience of the Clinton judicial cohort, especially on the district bench (42.8 percent). No doubt this will erode as more of his appointees become eligible for senior status. We also see the prominent role played by judges who avail themselves of the senior status option: for each court level, the number of senior judges is more than half the number of active judges. While retired judges albeit have reduced caseloads, they nonetheless are critical components of the system.
Earlier we discussed how the degree of rancor between the President and the Democratic minority in the Senate largely was a function of whether the appointment was to the district or appellate bench. The main bones of contention were several nominees to the latter, which of course have more of a policy-making role in the system. This is corroborated by the vacancies extant on each court on January 1, 2005. Fifteen positions (9 percent) were vacant on the courts of appeals to only nine (1 percent) on the district bench, further evidence of the stalemate that occurred on a number of controversial nominees to the appellate bench.
Although Congress enacted no judgeship legislation in the 108th Congress, Bush benefited from the 2002 legislation that authorized 15 new district court positions:2 Eighteen percent of his appointment opportunities to the district courts came from bench expansion. …