Bench Memos

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Courting Obama—Part 1


Continuing its cheerleading for Barack Obama, the Washington Post features a couple articles on its front page today under the headline “The Politics of the Federal Bench”.  I’ll address the first article here and the second in a follow-on post.

The first article, titled “GOP-Appointed Majorities Winning Ideological Battles at Appellate Level”, undertakes to address President Bush’s legacy of federal appellate appointments.  It is accompanied on the carryover page by a page-wide chart showing the total number of Republican-appointed judges on each court of appeals and the net increase in Republican-appointed judges resulting from appointments by Bush.  (At least I think I have the latter right; the Post’s own description—“the total gain in Bush appointees on each appellate court since 2001”—is difficult to decipher.)   

As you might guess from the title, the article does not inform readers that Bush’s total of 62 61 confirmed federal appellate appointees (which includes three of President Clinton’s nominees whom Bush renominated) is lower than Clinton’s total of 65, or that Senate Democrats opposing Bush nominees used the partisan filibuster for the first time (and on repeated occasions) as a weapon against judicial nominees.  These omissions are all the more striking in light of the prominent attention that the Post during the Clinton administration gave to claims (as one front-page article quoted AG Reno) that Senate Republicans were causing an “unprecedented slowdown” in confirming Clinton nominees. 

The article focuses on the Sixth Circuit to illustrate the supposed impact of Bush’s nominees.  But the case it tries to make is highly defective in several respects:

1.  The article highlights at the outset a Sixth Circuit panel’s decision in favor of a criminal defendant, Joseph Arnold, and the subsequent ruling by the en banc Sixth Circuit, “dominated by appointees of President Bush and other Republican presidents,” that “the evidence presented by prosecutors was sufficient to merit Arnold’s conviction.”  The article obscures from the reader that Clinton appointee, and ardent liberal, Martha Craig Daughtrey joined the entirety of the en banc majority opinion, that Clinton appointee Eric Clay joined the sufficiency-of-the-evidence holding that the passage discusses, and that the vote on that holding was 9-4.

2.  The article asserts that “Bush’s seven appointees to the circuit almost always vote together.”  It refers to no statistical study in support of its assertion, and it ignores the fact that one Bush appointee dissented in part from the Arnold case that it showcases.  (Nor does it explain why good judges shouldn’t generally reach the same results.)  Also, Bush has eight appointees, not seven, on the circuit, but getting that right would have required the Post to acknowledge that Bush had renominated and appointed Clinton nominee Helene White.

3.  The article states that only two of the Bush appointees “attracted any controversy … while the rest were approved by voice vote or tallies of 95 or 96 to 0.”  Oh, sure, never mind that Sixth Circuit judge David W. McKeague, originally nominated in November 2001, was filibustered and not finally confirmed, 96-0, until June 2005 (more than 3-1/2 years later), and that Sixth Circuit judge Richard A. Griffin, originally nominated in May 2003, was filibustered and not finally confirmed, 95-0, until June 2005 (more than two years later).  Since there was no “controversy”, shouldn’t the Democratic obstruction be all the more newsworthy?  Instead, the article quotes and leaves unrebutted Senator Patrick Leahy’s claim that Democrats treated Bush’s nominees more fairly than Republicans treated Clinton’s.

4.  The article quotes one anonymous Democratic-appointed judge complaining that “Anytime two of us show up on a panel and they [the Republican appointees] don’t like it, they yank it” (by taking the case en banc).  The reporter then asserts that the judge’s complaint “may be only a slight exaggeration.”  But the evidence the reporter offers—that on a grand total of 17 occasions over five years the en banc court has reversed Democratic panels—hardly seems to support the proposition.

5.  The article fails to point out that “[i]deological trench warfare” existed on the Sixth Circuit even before any Bush 43 appointees were on the court. 

6.  The article finds it newsworthy that over the eight years of the Bush presidency the number of circuit courts with Republican-appointed majorities has risen from seven to ten (out of a total of 13).  What is more remarkable in light of the fact that Republicans have been president for 20 of the past 28 years is that there aren’t more, and larger, Republican-appointed majorities.  How is it, for example, that only 11 of the 28 judgeships on the Ninth Circuit are filled by Republican appointees?

Update:  I hadn’t seen Jonathan’s post below and the Volokh Conspiracy post of his that he links to, the last paragraph of which identifies another error in the Post article that undercuts its innuendo that Bush appointees are voting on partisan grounds. 

Tags: Whelan


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