Having documented the New York Times editorial board’s opportunistic changes of position on the filibuster of judicial nominees, I’m surprised to see this new house editorial in which the NYT straightforwardly declares: “In the next Congress, the Senate should ensure every [federal appellate and district-court] nominee an up-or-down vote within 90 days.” By that statement, the NYT would seem to commit itself to maintain an opposition to judicial filibusters in the event that Mitt Romney is elected president. Let’s hope that it is put to the test.
It’s not encouraging, though, that the editorial provides a one-sided account in which Senate Republicans are entirely to blame for the dysfunction in the confirmation process. The trusting reader would have no idea that it was Senate Democrats, with the NYT’s support, who launched the campaign of filibusters against George W. Bush’s nominees in 2003, nor that they defeated cloture votes on far more of Bush’s nominees (ten) than Senate Republicans have of President Obama’s nominees (three).
As for the editorial’s observation that the D.C. Circuit “has suffered particularly in this process, with three unfilled seats and no judge confirmed for the court since 2006,” I’ll make two points.
First (repeating what I have recently spelled out), Obama’s bungling goes far to explain why he has filled no D.C. Circuit seats. In what leading Democratic lawyer Walter Dellinger calls “an act of judicial-political malpractice that should be legendary,” Obama took until the end of September 2010 to make his first nomination, of Caitlin Halligan (whom Senate Republicans did filibuster). He had first attempted to use a D.C. Circuit seat “as a political booby prize” by offering it to then-White House counsel Greg Craig as a means of easing Craig out of his job. Then, after the White House in early 2010 had settled on Sri Srinivasan for a D.C. Circuit nomination, the Left went after Srinivasan—in part because of union animosity to his corporate clients in private practice, in part because, in his former capacity as an assistant to the Solicitor General, Srinivasan advocated the positions of the Bush administration on Guantanamo war-on-terror detainee issues. Obama caved and abandoned Srinivasan. Only two years later—in June 2012, when there was a near-zero prospect of action on his nomination during the remainder of this year—did Obama finally nominate Srinivasan to one of the vacancies. The Senate Judiciary Committee, under Democratic chairman Patrick Leahy, never scheduled a hearing on Srinivasan’s nomination. And Obama never made a nomination to the third vacancy.
Second, the NYT editorial board’s lament that no judge has been “confirmed for the [D.C. Circuit] since 2006” would be easier to take seriously if it hadn’t harshly opposed the confirmations of Brett Kavanaugh (in 2006) and Janice Rogers Brown (in 2005) and if it had spoken out against the Senate inaction for two-plus years on the nomination (originally in 2006) of the superbly qualified and universally acclaimed Peter Keisler.