First he points out why a controversy even exists over these nominations:
Judicial nominations tend to be drawn-out, process-heavy affairs, as do the trials and appeals over which federal judges ultimately preside. Yet in the last few years alone, federal judges have shaped policy on climate change, health care, voting rights, labor relations, contraception, gun control and campaign finance, among other issues. Congressional action may get the bigger headlines, but federal judges often have the last word.
He then points out that the picture varies depending on whether the appointment is for a district court, or a circuit court judge.
. . . Mr. Obama has been roughly as successful as his recent predecessors in getting his circuit court nominees confirmed. He has placed a handful fewer judges because he has nominated fewer. His fifth-year failure rate (14 percent of nominees not confirmed) is actually somewhat lower than Mr. Bush’s (22 percent) and Bill Clinton’s (21 percent).
. . . The district courts, where federal trials occur, are a different story. There, Democratic presidents really have had a harder time winning Senate confirmation for their nominees.
The Senate failed to confirm only 3 percent of Mr. Bush’s district court nominees through June of his fifth year in office (and 1 percent by the end of his presidency). The fifth-year failure rate for Mr. Clinton was 11 percent, and it has been 8 percent for Mr. Obama. If every recent president had a confirmation rate as high as Mr. Bush’s, Democrats might have placed 25 more trial judges on the federal bench.
The difference is especially notable, legal experts say, because Democratic presidents have generally avoided nominating passionate liberals, while Mr. Bush did not shy away from putting strong conservatives in the mold of Justice Antonin Scalia on appellate courts.
Republicans, in other words, have played a tougher brand of politics with federal trial courts. Depending on one’s perspective, that strategy is more partisan or more successful — or both.
He finds that vacancies in trial courts happen mostly in states with two Republican Senators.
