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During PresidentGeorge W. Bush'stwo term tenure in office, a few of his nominations forfederal judgeships were blocked by theSenate Democrats either directly in theSenate Judiciary Committee or on the full Senate floor in various procedural moves, including the first use of a filibuster to block a Federal Appeals Court nominee.^[1] Republicans labeled it an unwarranted obstruction of professionally qualified judicial nominees.^[2]

Bush made 53 nominations for federal judgeships that were not confirmed by the Senate. Of these, 14 were withdrawn by Bush, while the other 39 expired at an adjournment of the Senate, including 30 that expired at the close of the110th Congress. As of October 16, 2019, 12 of his unsuccessful nominees had been nominated to federal judgeships by subsequent presidents, with 10 of them having been confirmed.

Yale law professorBruce Ackerman argued in a February 2001 edition of the magazineThe American Prospect that Bush should not be permitted to place nominees on the Supreme Court during his first term due to the Supreme Court's decision inBush v. Gore.^[89] In addition, law professorsCass Sunstein (University of Chicago) andLaurence Tribe (Harvard), along withMarcia Greenberger of theNational Women's Law Center, counseled Senate Democrats in April 2001 "to scrutinize judicial nominees more closely than ever." Specifically, they said, "there was no obligation to confirm someone just because they are scholarly or erudite."^[90]

In March 2001, the Bush administration stopped relying on theAmerican Bar Association (ABA) for the screening process for qualified judicial candidates. The administration justified the move by saying the ABA was liberal.^[91]

On May 9, 2001, President Bush announced his first eleven court of appeals nominees in a special White House ceremony.^[92] This initial group of nominees included Roger Gregory, a Clinton recess-appointed judge to the Fourth Circuit, as a peace offering to Senate Democrats. There was, however, immediate concern expressed by Senate Democrats and liberal groups like theAlliance for Justice.^[93][94] Democratic SenatorCharles E. Schumer of New York said that the White House was "trying to create the most ideological bench in the history of the nation."^[95]

During the108th Congress in which the Republicans regained control of the Senate by a 51–49 margin, the nominees that the Senate Democrats had blocked in the 107th Congress began to be moved through the now RepublicanSenate Judiciary Committee.^[96] Subsequently, Senate Democrats started to filibuster judicial nominees. On February 12, 2003,Miguel Estrada, a nominee for theD.C. Circuit, became the first court of appeals nominee ever to be successfully filibustered.^{[citation needed]} Later, nine other conservative court of appeals nominees were also filibustered. These nine werePriscilla Owen,Charles W. Pickering,Carolyn Kuhl,David McKeague,Henry Saad,Richard Allen Griffin,William H. Pryor,William Gerry Myers III andJanice Rogers Brown.^[97] Three of the nominees (Estrada, Pickering and Kuhl) withdrew their nominations before the end of the 108th Congress. Bush nomineeSandra Segal Ikuta would later be appointed to the seat Kuhl was nominated for.

As a result of these ten filibusters, Senate Republicans began to threaten to change the existing Senate rules by using what SenatorTrent Lott termed the"nuclear option". This change in rules would eliminate the use of thefilibuster to prevent judicial confirmation votes. However, in the 108th Congress, with only a two-vote majority, the Republicans were in a weak position to implement this procedural maneuver.

On October 7, 2004, just prior to the presidential election, Senate Democrats issued a statement complete with statistics arguing that they were not obstructing Bush nominees in any systemic way.^[98] District court candidates nominated by Bush were being confirmed at a higher rate than those similarly situated candidates nominated by PresidentsRonald Reagan andBill Clinton in their first term. Bush's success rate at getting circuit court of appeals nominees confirmed during his first term (67%) was less than those of Reagan (85%) and Clinton (71%), although higher than Clinton's second term (55%).^[99]

Things changed in 2005 due to the 2004 elections. With President Bush's re-election and the Republicans picking up further Senate seats (55–45) in the109th Congress, the "nuclear option" became a more viable strategy to ensure confirmation. On May 24, 2005, seven moderate senators of each party, called theGang of 14, in a deal to avoid the use of the "nuclear option", agreed to drop the filibuster against three of the seven remaining affected court of appeals nominees (Priscilla Owen,Janice Rogers Brown, andWilliam Pryor) but not two others (Henry Saad andWilliam Myers).^[100] In addition, the senators in the group agreed not to block future judicial nominees with filibusters except in cases involving "extraordinary circumstances".

As a direct result of the deal, the two filibustered nominees not mentioned in it (David McKeague andRichard Allen Griffin) were confirmed, as wasThomas B. Griffith, the person nominated to replace Miguel Estrada after his withdrawal. Griffith too had become the subject of controversy.^[101] Since Saad had no hope of a successfulcloture vote to overcome his filibuster due to the deal, he withdrew his nomination in the spring of 2006.^[102] Bush nomineeRaymond Kethledge would later be appointed to the seat.

At the end of the 109th Congress, a new controversy arose over William Myers and three other Bush court of appeals nominees who had not been specifically mentioned in the Gang deal but were still subject to its provisions:Terrence Boyle,William J. Haynes, II andMichael B. Wallace. These nominations were returned to the White House according to Senate rules on August 3, 2006, in advance of the annual August recess of Congress. When the Senate returned in September, it was only for a short period before a break for the 2006 midterm election. Although Boyle, Myers, Haynes and Wallace were renominated, again no action was taken on them in theSenate Judiciary Committee before the break, and their nominations were sent back a second time to the White House on September 29.^[103]

After the November 7, 2006 election in which Democrats picked up six additional Senate seats, President Bush again renominated the candidates whose nominations had been sent back to him in September. The Republican Judiciary Committee chairman, SenatorArlen Specter, however, said that he would not process these nominees during the lame duck session of the 109th Congress.^[104] Bush would later nominateLeslie H. Southwick to the seat Wallace was nominated for and he would be confirmed, whileN. Randy Smith, who had previously been nominated for another seat on the Ninth Circuit, would be appointed to the seat Myers was nominated for. Obama nomineeJohn B. Owens would later fill the seat Smith was originally nominated to. Southwick had previously been nominated to a seat on theUnited States District Court for the Southern District of Mississippi, which would later be filled by Obama nomineeCarlton W. Reeves.

At the beginning of the110th Congress in January 2007, President Bush did not renominate Boyle, Myers, Haynes and Wallace in an attempt at reconciliation with the Democrats.^[105] However, that did not stop many Bush judicial nominees from being blocked in committee by the new Democratic chairman of the Senate Judiciary Committee, SenatorPatrick Leahy. Among those stalled in committee until their nominations lapsed were appellate nomineesPeter Keisler,Robert J. Conrad,Steve A. Matthews andGlen E. Conrad. The latter three seats would later be filled by Obama nomineesJames A. Wynn Jr.,Albert Diaz, andBarbara Milano Keenan.

SenatorHarry Reid, the DemocraticMajority Leader, and ChairmanLeahy cited theprevious controversy over President Clinton's court of appeals nominees in justifying why only ten Bush appellate nominees were confirmed during the 110th Congress.^{[106][107][108]} A total of eleven appellate seats with Bush nominees were left open at the end of the110th Congress. Of those seats, two (i.e. the North Carolina and Maryland seats of theFourth Circuit) had originally become available to fill during the administration of PresidentBill Clinton.

In the spring of 2001, then-RepresentativeChristopher Cox and lawyerPeter Keisler were both considered for federal appellate judgeships. Cox was considered for a California seat on theNinth Circuit and Keisler for a Maryland seat on theFourth Circuit. Both withdrew themselves from consideration before a nomination could be made because their home state Democratic senators objected to them due to their perceived conservatism.^[109] The California seat that Cox had been considered for was eventually filled by Bush nomineeCarlos Bea. In 2005, Cox was nominated and confirmed asChairman of theU.S. Securities and Exchange Commission, a position he held until the end of the Bush administration in January 2009. The Maryland seat that Keisler had been considered for was to remain open the entirety of Bush's presidency with the failed nominations ofClaude Allen andRod J. Rosenstein and would be filled by Obama nomineeAndre M. Davis. in 2009. In 2006, Keisler was unsuccessfully nominated to a seat on theD.C. Circuit. The seat would be filled by Obama nomineePatricia Millett in 2013. In 2007, after the resignation ofAlberto Gonzales, Keisler became theActing Attorney General until the confirmation ofMichael Mukasey.^[110] He left theDepartment of Justice in March 2008 to return to private practice.

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