Bench Memos

Misleading WashPo Editorial on Confirmation Delays

Everyone ought to be able to agree that the Senate’s process for confirming judicial nominees has long involved a lot of unnecessary delay. How to improve the process is a much more difficult and contentious issue. But getting the facts right and presenting them fairly would be a good start.

Unfortunately, a house editorial in today’s Washington Post leaves the trusting reader with the false impression that there is something new and unprecedented about the current Senate’s “hold[ing] up confirmation for uncontroversial trial court nominees.” But the delays encountered by the 15 district-court nominees on the Senate’s executive calendar are, in the aggregate, much shorter than the delays experienced by 39 of George W. Bush’s equally “uncontroversial” district-court nominees (see list here), all of whom ended up being confirmed unanimously or by voice vote in the 110th Congress. Indeed, only seven of the pending district-court nominees are beyond the 180-day mark (from first nomination), whereas 34 of Bush’s 39 were. And only one of the pending district-court nominees is beyond the nine-month mark, whereas eleven of Bush’s were.

The editorial also oddly refers to “20 perfectly qualified nominees languishing on the floor without a vote.” (The figure of 20 includes the 15 district-court nominees and five appellate nominees on the Senate’s executive calendar.) Perhaps the editorial means only to assert that the nominees are supposedly unobjectionable (even though at least three of them—four, according to the editorial—received negative votes in committee). But calling them all “perfectly qualified” is grossly extravagant rhetoric. Even the ABA rated eight of the 15 district-court nominees no better than “qualified”—and, in two instances, gave mixed “qualified/not qualified” ratings.  (Also, Sixth Circuit nominee Bernice Donald, far from “languishing,” is the beneficiary of a unanimous-consent agreement that provides for a final vote on her nomination on September 6.)

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