Bench Memos

NRO’s home for judicial news and analysis.

A Double Standard on Judicial Confirmations


Readers of this blog will not be surprised to learn of yet another subject on which the editorial board of the New York Times has one standard of conduct for Republicans and another for Democrats. Today’s editorial “Advise and Obstruct” accuses Republican senators of “playing an obstructionist game” and urges the lame-duck Senate to “lift the judicial confirmation process out of the partisan muck” and confirm all of the president’s judicial nominees. Uh-huh.

The Times did note in passing a fact that is apparent to all who follow the judicial-confirmation process, namely that President Obama’s extraordinarily slow pace in even nominating candidates is responsible for many of the existing judicial vacancies.

What the Times left unsaid, however, is that a handful of deeply flawed nominees are so politically dangerous to red-state Democratic senators that Majority Leader Reid has slow-walked them into oblivion so as to not force these senators into having to cast a public vote. This includes Goodwin Liu, who the Times opines is only opposed because of his Supreme Court prospects. But it’s not the prospect of a potential nominee that upsets conservatives — it’s Liu’s particular brand of radical liberal ideology. (Read Ed Whelan’s thorough work exposing Liu’s far-left positions if you need proof that Liu could move the Ninth Circuit, let alone the Supreme Court, to the left.) If Democrats really think this is such a terrible rationale for blocking a judicial nominee, they should read Justice Kagan’s recent recommendation letter for Miguel Estrada, and consider making an even trade.

So where does responsibility really lie for these judicial vacancies? The liberal American Prospect blog, Tapped, seems to have a bead on it.

Of course, if there’s anyone to blame, it’s Reid for his inaction and Obama for his unconcern with the judicial nomination process. At any point during the last two years, Reid could have forced a showdown with Republicans over secret holds and their obstruction of judicial confirmations. What’s more, Obama could have been much more diligent about making nominations to fill the large and growing number of vacancies on the lower courts.

But the Times instead insists that “Senate Republicans are persisting in playing an obstructionist game” — which they imply has something to do with filibusters. This is completely disingenuous.

First, Republicans have not even attempted to filibuster a single one of the nominees that the Times claims are being blocked. Frankly, even with 41 senators, they probably wouldn’t have had the votes to sustain such a filibuster. They have called for cloture votes, which requires Democrats to eat up floor time on a nominee, but they can still get a vote if they want one. Harry Reid simply hasn’t made that his priority, preferring to spend his time commandeering the American economy and undermining our national defense. 

Second, if filibustering were really causing problems, Democrats were in a perfect position to stop even the implied threat: they could simply have changed the filibuster rule for judicial nominees, which has been long discussed as an option. Although, as I noted, no filibusters have actually taken place.  Perhaps Senate Democrats should be working on cloture reform as well. 

Or just be willing to actually fight for the kind of judges they support.


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