Bench Memos

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LA Times’s Bogus Statistics on Confirmation Rate


Catching up on matters, I’ll highlight this Los Angeles Times article from last week that discusses the pace of judicial confirmations.  I was particularly struck by this assertion in the article (emphasis added):

Obama’s judicial confirmation rate is the lowest since analysts began detailed tracking the subject 30 years ago, with 47% of his 85 nominations winning Senate approval so far. That compares with 87% confirmed during the first 18 months of the previous administration, 84% for President Clinton, 79% for President George H.W. Bush and 93% for President Reagan.

The article’s assertion that President George W. Bush had 87% of his early judicial nominees “confirmed during the first 18 months of [his] administration” struck me as farfetched.  And it turns out that it is wildly wrong.  Specifically (by my quick count, which may not be perfect but should be very close), President Bush nominated some 112 judges during his first 18 months (32 to the courts of appeals and 80 to the district courts), and 64 of these (13* to the courts of appeals and 51 to the district courts) were confirmed during the first 18 months of his administration.  That yields an overall figure of 57%, not 87% (and the figure for the courts of appeals was just under 41%).

I’ll note further that, according to the Brookings Institution’s Russell Wheeler (see table on page 4 of this report), 69% of lower-court judicial nominations made by President Obama during 2001 2009 had been confirmed by the end of March 2010 2002—compared to 66% of President Bush’s during the comparable time frame.  (Wheeler sensibly builds in some lag time between nomination and confirmation.)  So Obama’s confirmation rate was slightly higher than Bush’s as of that time (and it was much higher—58% to 22%—for the more influential seats of appellate nominees). 

As for right now:  In response to my e-mail query, Wheeler informs me that the Senate has confirmed 71% of Obama picks nominated by early April 2010, and that the comparable figure for Bush picks was 73%.  In other words, no meaningful difference—and worlds away from the 40-point gap (47%-87%) that the LA Times concocted.

I suspect that the Times reporter somehow confused the question of how many of the nominations that President Bush made during the first 18 months were ever ultimately confirmed (whether inside or outside the 18-month window) with the question of how many were “confirmed during the first 18 months of [his] administration.” 

To be sure, the total number of Obama lower-court nominees who have been confirmed (40) is well below the Bush total (72) for the comparable period.  (Virtually the entire gap is on the district-court side of the ledger:  30 for Obama, 60 for Bush.)  But the obvious reasons for that disparity are that (1) Obama has been remarkably slow to make nominations—for example, nearly 20 months into his presidency, he still hasn’t nominated anyone to the D.C. Circuit, and (2) his two Supreme Court nominations have consumed much of the Senate’s time and attention.  (John Vecchione, offering facetious congratulations to Obama for his “deliberate and thoughtful approach to judicial vacancies,” has further thoughts on the delays.)

I am not disputing that Senate Republicans have engaged in much of the same procedural obstruction (not including filibusters) that Senate Democrats made routine during the Bush years.  But anyone who hopes for an end some day to that obstruction should be applauding Republicans.  For the only way ever to achieve a bipartisan consensus against such obstruction is to make sure that both sides experience its costs. 

Patterico, who does a great job covering the L.A. Times’s mess-ups and distortions, has more here.

* And don’t forget that two of these 13 confirmed appellate nominees were Democrats whom President Bush nominated as (unsuccessful) peace offerings.


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