Bench Memos

The Blame Game

Democrats are still annoyed at the slow pace of judicial confirmations under President Obama, and have been regularly complaining to the media. Unfortunately, they have identified precisely the wrong culprit. The leisurely confirmation pace is due less to the actions of the Senate Republicans than to a combination of President Obama’s own relaxed rate of nominations, Senate Majority Leader Harry Reid’s unwillingness to devote floor time to debating and voting on the nominees, and the confirmations of two Supreme Court nominees — both were swiftly confirmed, but their nominations were necessarily a huge drain on time and resources for the Senate, the Judiciary Committee in particular.

Despite having the legal background to know how important the judiciary is and a team in place that should be able to identify candidates, the president simply has not made judicial nominations a priority. He has nominated judges to well under half the existing federal court vacancies, and lags far behind presidents Bush and Clinton, who at this point in their presidencies had nominated about 40 more judges each.

Yet Senate Democrats would rather not have to blame their own president, so they are trying to paint Republicans as obstructionist, pointing to overall lower numbers of judges confirmed under Obama. But that ignores the actual rates of confirmation under Bush and Obama, which are very similar — about 50 percent of nominees confirmed for Obama, about 60 percent for Bush. A closer look at the numbers shows that the hold-up is entirely on the Senate floor. Democrats are moving nominees through committee more quickly than Republicans did, but simply haven’t brought their nominees up for floor votes. And the filibuster isn’t to blame either — even if Republicans had wanted to filibuster Obama’s nominees, they simply haven’t had the numbers to do so. That hasn’t stopped President Obama, who himself filibustered judicial nominees as a senator, from chiding Republicans for filibusters that never happened.

The recent AP piece on nominations made a curious omission in focusing on the overall numbers of confirmed judges rather than confirmation rates. The piece also suffered from an even more glaring oversight: This Senate has been through two Supreme Court confirmations. That slows all other judicial-nomination work to a standstill. Comparing a session without Supreme Court confirmations and one with two of them is like comparing apples and oranges. Instead of looking at each president’s first Congress, the AP should have compared Bush’s 109th Congress with Obama’s 107th, because both had two Supreme Court nominations to handle. But then the story would have been less interesting, because their confirmation rates are in fact very similar. (As Ed Whelan has observed, this is not a problem for the AP alone. The LA Times has also reported misleading statistics about the confirmation rate of Obama judges.)

If Democrats really want to see more of their judges confirmed, they will simply have to change their priorities. Until then, they should stop blaming Republicans for not doing Obama and Reid’s jobs for them.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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