People For the American Way

On Judicial Confirmations, 4 ≠ 21

Politico is reporting today on how the Senate GOP is blocking President Obama’s judicial nominees:

The GOP-controlled Senate is on track this year to confirm the fewest judges since 1969, a dramatic escalation of the long-running partisan feud over the ideological makeup of federal courts.

The standoff, if it continues through the 2016 elections as expected, could diminish the stamp that President Barack Obama leaves on the judiciary — a less conspicuous but critical part of his legacy. Practically, the makeup of lower-level courts could directly affect a number of Obama’s policies expected to face legal challenges from conservatives.

As we’ve written before, to determine how fairly or unfairly Republican-controlled Senate is treating Obama’s circuit and district court nominees during his last two years in office, the fairest and most accurate comparison is with how the newly-Democratically-controlled Senate treated George W. Bush’s nominees during his last two years:

  • So far this year, the Senate has confirmed only four judicial nominees.  By this same point in 2007, the Senate had confirmed 21 of Bush’s judicial nominees.
  • Since the beginning of the year, circuit and district court vacancies have jumped from just 40 to 59, a nearly 50% increase.  In contrast, in 2007, vacancies dropped from 56 at the beginning of the year to 51 on July 1.  In fact, by the fall of 2008 the Democratic-controlled Senate had confirmed so many of Bush’s nominees that the number of vacancies got as low as 34.
  • Judicial emergencies have skyrocketed from 12 at the beginning of this year to 27 today.  In contrast, in 2007, emergencies dropped from 25 at the start of the year to 18 as of July 1.

When asked about the GOP’s slow-walking of judicial nominees, Republicans went into full avoidance and distraction mode, echoing talking points that Judiciary Committee Chuck Grassley has given before.  Politico reports:

Republicans say statistics show that Obama is receiving comparable treatment to Bush. So far, Obama has gotten 311 judges installed nationwide — compared to 276 for Bush at the same point in his presidency.

The following passage did not appear in Politico, but it would have been great if it had:

Grassley has not publicly turned beet red with embarrassment for taking credit for so many confirmations when, in fact, he and his party opposed even allowing the Senate to vote on an enormous percentage of them.  The GOP forced time-consuming cloture votes on 93 of President Obama’s judicial nominees, even though Republican senators voted to confirm most of them anyway.  The number is high not because of Republicans but in spite of Republicans.  And cloture votes only tell part of the story of the obstruction.  Although Senate Republicans did everything they could to gum up the works and prevent timely confirmation votes for President Obama’s nominees, they seem more than happy to take credit for their eventual confirmation.

Back to the real Politico article:

And while Democrats boast that they had confirmed 21 judges at this point in 2007, Republicans noted that 13 of them had been awaiting floor consideration the previous year. In contrast, Democrats confirmed 27 judges during the lame-duck session late last year before Republicans took over.

And here is how that paragraph might have appeared without the prism of Republican talking points:

By this time in 2007, the Senate had confirmed 13 judges left over from 2006 who were denied a vote during the lame duck not by Democrats, but by Republican Sam Brownback of Kansas.  The Senate had by this point in 2007 also confirmed an additional eight judges who had cleared the Judiciary Committee for the first time that year, a number that by itself is twice the number confirmed by the current Senate.

It is also unclear how mentioning last year’s lame duck confirmations makes the GOP look any better.  If Mitch McConnell was unwilling to schedule more than a mere four confirmation votes during the first half of the year, forcing nominees to wait month after month after committee approval before a vote, then it is hardly realistic to think that adding last year’s lame duck nominees to the mix would have done anything except increase the size of this year’s bottleneck.

The Republican talking points also don’t mention that all but three of the lame duck confirmations had unanimous Republican support.  Even though the nominees had been fully vetted, and even though Republican senators concluded that they were qualified for a lifetime position on the federal bench, they still filibustered most of them before voting to confirm them.  They apparently believed then and believe now that the judgeships these nominees filled should have remained vacant well into this year, even though the Senate was prepared to confirm them last year, and despite the harm that delay would have caused to Americans across the country.

But put all that aside.  At mid-year, here’s the short version:  The GOP-controlled Senate confirmed only four Obama judicial nominees in the first half of this year.  By the same point in 2007, the Democratic-controlled Senate had already confirmed 21 of Bush’s.

No matter how you slice it, 4 ≠ 21.

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