In a new study, an expert on federal judicial nominations has tried to inject some hard data into the sometimes overheated debate about President Barack Obama's record on filling the bench.
What Russell Wheeler found: "Obama's not doing so bad, as far as appeals court nominees go."
Wheeler, a fellow at the Brookings Institution, wanted to cut through the Senate debates, where both sides are throwing out statistics on confirmations to support their arguments. Democrats blame Republicans for being obstructionist; Republicans say Obama's nominees have been treated fairly compared with those from other presidents.
"There's just so much rhetoric that surrounds this, and it's sloppy rhetoric at this point, from both sides," Wheeler said.
Wheeler says Obama's circuit court confirmations are on par with previous presidents. His 30 confirmations match President Bill Clinton's first-term record and are four below President George W. Bush’s first term.
And Obama's appellate court confirmations have altered the balance in federal circuit courts, Wheeler said in his paper.
As of Aug. 2, 81 of the 165 circuit judges in active status, or 49 percent, are Democratic appointees. When Obama took office, 65 of those 165 judges, or 39 percent, were Democratic appointees.
"In January 2009, one of the 13 courts of appeals had a majority of Democratic appointees; today, six do, although some of the majorities are slim, and the balance of Republican and Democratic appointees is a weak predictor at best of decisional tendencies," Wheeler writes.
Obama's district court confirmations are a different story, Wheeler points out. As it stands now, Obama's 125 confirmations, an 80 percent rate, are well below either of the final figures for the first terms of Clinton (87 percent) or Bush (97 percent), and slightly below those of their second terms.
The district court picture could change with confirmations after the current summer recess, but any more circuit court confirmations are unlikely to happen.