Bench Memos

AG Holder on the Judicial Confirmation “Crisis”

In the Washington Post today, Attorney General Eric Holder contends that there is a “crisis” in the judicial-confirmation process.  His lead item of evidence:  the “all too typical” story of Sixth Circuit nominee Jane Stranch, who “was forced to wait almost 300 days for an up-or-down vote by the full Senate,” only to be “confirmed overwhelmingly.” 

There is no question that the state of the judicial-confirmation process has for years been far from ideal.  Any serious effort to fix that process would require acknowledging that fact—and carefully and candidly exploring its causes.

Unfortunately, other than an oblique reference at the end of his op-ed to Senate Republican leader Mitch McConnell’s call in 2005 for up-or-down floor votes on judicial nominees, Holder gives the false impression that there is something new about the situation that nominees like Stranch—who was confirmed by a 71-21 vote—have faced.  Try telling that to Michael McConnell, who was unanimously confirmed to the Tenth Circuit 555 days after his 2001 nomination.  Or to a fellow named John G. Roberts Jr., who was unanimously confirmed to the D.C. Circuit 729 days after his 2001 nomination.  I could go on and on.  Instead, I’ll simply note this observation (emphasis added) in a report yesterday from the Brookings Institution’s Russell Wheeler:

On September 26, 2002, Bush had seen confirmations of 43 percent of his 30 pre-May 26 circuit nominees, with 236 days on average from nomination to confirmation. Obama’s circuit confirmation rate is higher for his 18 like-situated nominees—61 percent, although average days from nomination to confirmation, 232, was virtually the same as for Bush.

Holder complains that “there are more vacancies today than when President Obama took office.”  As Wheeler discusses, one cause of the rise in vacancies is that “Obama has made fewer nominees than Bush did and has taken longer to make them.”  Indeed, “[o]f the 52 district vacancies for which no nominees are pending, 21 have been vacant for over a year.”  But it’s also the case, in what Wheeler calls “in some ways the most intriguing development of all,” that Obama’s confirmation rate for his district-court nominees (58%) is at this point “noticeably lower” that Bush’s was (90%).  That said, the most recent data (discussed here) that I’ve seen from Wheeler that aggregates circuit and district nominees indicates that Obama’s overall confirmation rate (71%) is virtually identical to what Bush’s was (73%). 

Reasonable people can disagree whether the serious problems in the judicial confirmation process amount to a “crisis.”  But if there is a “crisis,” it’s been at least nine or ten years in the making.  And the folks who did so much to cause it shouldn’t now be able to take partisan advantage of it.


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