Statistics Without Sense

by Ed Whelan

This house editorial in yesterday’s New York Times, titled “Courts Without Judges,” reflects the NYT editorial board’s usual one-sidedness and selective amnesia: Obama’s judicial nominees, we’re told, are “decidedly moderate.” That “was not always true of the Bush judicial choices that the Democrats felt compelled to filibuster.” (The poor Dems—forced to act against their nobler instincts.) “Neither party should be in the business of obstructing judicial nominees” (gee, why didn’t you say so during the Bush 43 presidency?) “unless they are unqualified or unacceptably extreme” (labels that NYT will fling against any conservative judicial nominees). And so on.

Two points about NYT’s statistics:

1. The editorial asserts near the top that “the most important cause” of 85 existing judicial vacancies is “the determination of Senate Republicans, for reasons of politics, ideology and spite, to confirm as few of President Obama’s judicial choices as possible.” Only in the second-to-last paragraph does the reader learn that “62 district and circuit court vacancies have no nominees.” It would seem that the most important cause of 62 of the 85 vacancies is that President Obama hasn’t made any nominations.

2. The editorial and accompanying graphic uses the odd measure of “[a]verage wait for nominees from committee approval to confirmation”—instead of the much more sensible benchmark of overall time from nomination to final Senate action—in order to give the false impression (see point 2 here) that Obama nominees are faring worse than Bush 43’s.

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