Bench Memos

NRO’s home for judicial news and analysis.

White House Spins Wash Times Reporter in Circles on D.C. Circuit


To see how the White House is spinning President Obama’s Keystone Kops escapades on D.C. Circuit nominations, take a look at this Washington Times (yes, Times!) article. Some quick comments:

1. The article states in its second sentence that Senate Republicans are “pitching a shutout with Mr. Obama’s nominees” to the D.C. Circuit. A bit later, it refers to the recent withdrawal of Caitlin Halligan’s nomination as “Mr. Obama’s latest setback at filling this court.”

An intelligent reader might infer from these passages that Senate Republicans have been defeating nominee after nominee. But in fact Halligan is the first D.C. Circuit nominee that Republicans have defeated. In other words, Obama is only 0 for 1 so far. (Paragraphs later, the attentive reader would learn that Obama has nominated only two candidates to the court.)

Obama went nearly two years without nominating anyone to the D.C. Circuit, and Halligan is the only nominee to have gone through the Democrat-controlled hearing process. Obama did nominate Sri Srinivasan last June—without going through the usual procedure of first receiving the ABA judicial-evaluation committee’s rating of Srinivasan—but everyone understood that that mid-election year nomination wouldn’t be acted on, and Senate Judiciary Committee chairman Patrick Leahy never even scheduled a hearing on it.

2. The article states:

The Senate has confirmed nine judges this year, and a White House official said these nine judges waited 144 days on average for a floor vote. President George W. Bush’s nominees, by contrast, waited an average of 34 days for a floor vote at the same point in his presidency.

a. A reader might imagine that the reporter is making an intelligent apples-to-apples comparison. But in 2005—the first year of President Bush’s second term—the Senate hadn’t confirmed any of Bush’s nominees by this date. (It of course had confirmed nominees in previous years.)

b. I don’t know where the “average of 34 days” comes from. This Congressional Research Service report states (in Table 1 on pages 26-27) that the average (mean) number of days from nomination to confirmation was 171 days for Bush’s district-court nominees from 2001 through 2006 and 366 days for Bush’s circuit-court nominees during that period.

Perhaps the reporter is unwittingly using the time from committee approval of a nominee to the time of a Senate floor vote (and perhaps he’s also using that for the Obama nominees—I don’t have the time to look into it). In any event, the far more meaningful measure is the overall time to confirmation.

c. Let’s take a look at the first nine Bush nominees that the Senate confirmed in 2005 (again, none by the beginning of April):

Janice Rogers Brown’s path to confirmation (from initial nomination) took nearly 23 months.

Robert Conrad’s took a full two years.

Paul Crotty’s took seven months.

For James Dever and Richard Griffin, nearly three years each.

For David McKeague, some 3-1/2 years.

Priscilla Owen’s confirmation took four years.

William Pryor’s took more than two years.

And Michael Seabright’s took more than seven months.

Would the Obama White House really like to compare the treatment of its nominees to the treatment of Bush 43’s?

3. The article quotes White House press secretary Jay Carney as asserting that the workload of the D.C. Circuit “has increased by over 20 percent since 2005.” I don’t know what statistics Carney is molesting. As I’ve pointed out before, according to the official United States Courts statistics, the total number of pending appeals in the D.C. Circuit as of September 2005 was 1,463, and the total number as of September 2012 was 1,315. That would be a decrease of just over 10%. (As the linked pages show, the number of cases filed also decreased substantially—more than 14%—from the 12-month period ending Sept. 30, 2005 to the 12-month period ending Sept. 30, 2012.)

(As always, if I have made any mistakes in quickly compiling this data, please call them to my attention so that I can correct them.)


Sign up for free NRO e-mails today:

Subscribe to National Review