Bench Memos

Doug Kendall’s Illusion

I was surprised to read Doug Kendall’s piece yesterday on Slate contending that Senate Republicans have developed a “new form of obstructionism” of judicial nominees and “are prepared to take the partisan war over the courts into uncharted territory.”  Could it really be, I wondered, that Senate Democrats, who resorted to the massive and unprecedented series of partisan filibusters against Bush 43 judicial nominees and who even took the extraordinary measure of returning unconfirmed nominees to the White House during intrasession recesses, had somehow left some terrain of procedural obstruction unexplored? 

Well, it turns out that the answer is no.

Kendall’s argument, in brief, is that the “new form of obstructionism” engaged in by Senate Republicans is “delaying up-or-down votes on the Senate floor for even the most qualified and uncontroversial of the president’s judicial nominees.”  But this is exactly the practice that Senate Democrats engaged in on Bush nominees:  by routinely insisting on roll-call votes (rather than proceeding by unanimous consent), Senate Democrats required the same time-consuming process that Kendall now decries. 

According to information I’ve received from a reliable Senate staffer, in the 50 years before Bush 43, only 63 of the nearly two thousand confirmations of lower-court judges involved a roll-call vote.  In the Bush 43 years, the Senate confirmed 191 lower-court judges by roll-call vote, and 166 of those (around 87%) were unanimous.  In other words, Senate Democrats required roll-call votes—and the attendant negotiations over what Kendall labels “precious floor time”—on lots of nominees that were so “uncontroversial” that not a single Democrat voted against them.  And this process took a lot of time:  according to a Congressional Research Service report (which may or may not be accessible here), the average number of days from first nomination to final Senate action for confirmed Bush 43 nominees was 350 days for federal appellate nominees and 179 days for district-court nominees.  (The comparable figures for Clinton nominees were 238 days and 136 days, respectively.)

Kendall’s leading item of evidence in support of his contention that things are now different is that in 2007 and 2008 the Senate “voted on more than one-third of Bush’s confirmed nominees (26 of 68) less than three months after the president nominated them.”  But Kendall’s data is woefully flawed and misleading. 

First, a full 15 of the 26 nominees whom Kendall claims were confirmed “less than three months after the president nominated them” had in fact merely been renominated by President Bush in January 2007.  If one looks to their earlier, original nomination dates, then the time to confirmation is much longer:  14 months for two of the nominees, 8 or 9 months for eight nominees, and 6 or 7 months for the other five.  In short, these 15 nominees undercut rather than support Kendall’s case.

Second, the remaining 11 nominees who actually were confirmed less than three months after President Bush nominated them include folks like Sixth Circuit nominee Helene White, who is Democratic senator Carl Levin’s former cousin-in-law and who had been nominated to the same court by President Clinton; district-court nominee Stephen Murphy, who was part of the deal that the White House struck with Democrats over Helene White (and who two years before his confirmation had been nominated to the Sixth Circuit); and, in instances of evident outright White House capitulation to Democratic senators, Democratic supporters like Anthony Trenga, Mary Scriven, and former Clinton nominee Christine Arguello.  It’s hardly a surprise that Senate Democrats moved these nominees fast, and you can be sure that Senate Republicans would likewise move quickly on any comparable picks by President Obama (not that there will be any). 

There’s a lot more that’s contorted about Kendall’s argument.  For example, his contention that Obama nominees Andre Davis and David Hamilton “have spent longer in this particular form of limbo”—i.e., the period between Judiciary Committee vote and floor action—“than any Bush nominee confirmed from 2007-08” obscures more than it enlightens.  The sensible benchmark for comparison is overall time from nomination to final Senate action.  The various stages of that process will, not surprisingly, vary in duration depending on the particular political configuration.  For example, in 2007 and 2008, Democrats had control of the Senate and made a practice of giving hearings only to those Bush 43 nominees to whom they intended to give the green light, so it’s not remarkable that the time from committee action to floor vote was relatively short (and the time from nomination to committee hearing relatively long).  By contrast, the Senate Judiciary Committee is now scheduling hearings and committee votes for President Obama’s nominees very rapidly (sometimes before Republicans even have a fair opportunity to review the record), so Republicans resort to the post-committee stage to ensure thorough review.

And then, of course, there’s Kendall’s suggestion that Hamilton should be deemed uncontroversial merely because he has the support of Richard Lugar, the Republican senator from Indiana (who also supports Dawn Johnsen’s OLC nomination and who ran interference for State Department legal adviser Harold Koh).  Home-state senators have lots of bad reasons for supporting nominees (as former Florida senator Connie Mack’s support of President Clinton’s nomination of Rosemary Barkett to the Eleventh Circuit starkly illustrates).  Hamilton’s controversial record—which I’ve discussed in several posts, including here, here, here, here, and here—belies any positive inferences that might be drawn from Lugar’s support.

At bottom, Senate Republicans, far from developing a “new form of obstructionism,” are deploying only a portion of the arsenal that Democrats used against Bush 43 nominees.  And while it’s theoretically possible that Republican leader Mitch McConnell is playing harder hardball on negotiating floor votes for “uncontroversial” nominees than his Democratic predecessors did, Kendall offers no meaningful evidence in support of that proposition.