A Few Facts to Frame the Debate

Posted Nov. 12, 2003

Versus the rhetoric of obstructionism, a record number of judges approved

Overall, President George W. Bush’s judicial nominees are being confirmed to federal judgeships at a rapid pace, matching or exceeding the judicial confirmation rates of the Clinton and Bush I Administrations. To date, 168 of President Bush’s nominees have been confirmed to the federal bench. This is an average of about five per month, the same rate of confirmation as in the first three years of the Clinton Administration, and more than the four per month average during the first three years of the Bush I Administration. In fact, more Bush II appeals court nominees (29) have been confirmed to date than in the first three years of the Clinton Administration (28).

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The judicial vacancy rate at historic lows.

The backlog created by GOP obstruction of Clinton nominees has been erased

There are currently just 42 vacancies in the federal judiciary, about one-third of the 111 judgeships open when the Democrats took control of the Senate in July 2001. It is the lowest vacancy rate in 13 years, and lower than the national unemployment rate.

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The White House is choosing confrontation over cooperation

The way to limit the time and energy expended in divisive confirmation battles is not a partisan power play that would fundamentally alter the nature of the Senate in order to cement ideological domination of the judiciary for decades to come. The way forward is for the White House to engage in genuine consultation and cooperation on judicial nominations, as President Clinton did with Senator Hatch, which could result in mainstream nominees who could win bipartisan support.

The Bush White House has shown that it understands how such consultation can work (as it did recently with Wisconsin’s senators), but unfortunately that is most frequently the road not taken by the Bush White House. An October 30 editorial in the Washington Post noted, “A good judicial nomination fight -- or two or three or four -- energizes the GOP electoral base and lets the president wax wounded about Democratic obstruction. Over the past year, Mr. Bush has begun energetically fueling the fire by sending the Senate nominees seemingly calculated to provoke Democratic ire.”

The same editorial called Janice Rogers Brown “one of the most unapologetically ideological nominees of either party in many years” and concluded:

Mr. Bush cannot reasonably expect Democratic senators to support such a nominee. Given their propensity to rail against judicial activism, in fact, the wonder is that so many Republicans seem willing to back a candidate who -- at least until her hearing -- made no secret of her yearning for a judiciary "audacious enough to invoke higher law." If the judicial nomination wars are ever to abate, it will be because a president reaches out to the other side and asks for apolitical consideration of apolitical nominees. As long as the president so nakedly plays to his own base, he courts exactly the obstruction of which he complains.

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