Bench Memos

New York Times Now Opposes “Extreme Judicial Blockade”

A New York Times house editorial two days ago, titled “An Extreme Judicial Blockade,” criticizes Senate Republicans for “invok[ing] an obscure Senate rule that required [five of President Obama’s judicial nominees] to be re-nominated.”  The NYT doesn’t see fit to mention that that “obscure Senate rule”—which requires unanimous consent to keep nominations in the Senate over a recess—is the very rule that Senate Democrats, in a departure from Senate practice, invoked on multiple occasions against President George W. Bush’s nominees.  Nor does the NYT note that four years ago it treated the Senate Democrats’ return of judicial nominees as a clear message from Democrats that those nominees were “unacceptable”—and that it contended that President Bush, in not accepting that message, wasn’t being bipartisan.  Indeed, back then it highlighted claims by Senate Democrats that Bush’s renominations were “provocative” and “a clear slap in the face.”

As for the NYT’s assertion that Ninth Circuit nominee Goodwin Liu’s “views fall well with the legal and political mainstream,” I’ll refer the reader to my selective inventory of pre-hearing posts on Liu, my commentary (parts 1, 2, 3, and 4) on his hearing testimony, and my review (parts 1, 2, 3, and 4) of his post-hearing written responses.  (Do Senate Democrats really want a debate on the Senate floor on the Liu nomination in advance of November’s elections?)

I also find amusing this sentiment in the editorial:  “It would be nice if some Republican members of the Judiciary Committee voted for Mr. Liu and the four other re-nominees.”  Somehow I don’t recall the NYT expressing a similar sentiment in the Bush years, even as Senate Democrats engaged in far uglier conduct.

Finally, a few observations on the NYT’s statement that the Senate “had confirmed 61.4% of Mr. Bush’s nominees” at the “comparable point in the Bush presidency” versus “under 50 percent” for President Obama: 

(1) I’m pleased to take note that, thanks to the relentless efforts of Patterico, the Los Angeles Times has finally acknowledged that its claim last month that President Bush had 87% of his early judicial nominees “confirmed during the first 18 months of [his] administration” was wildly wrong. 

(2) As the methodology adopted by the Brookings Institution’s Russell Wheeler (discussed in this post) reflects, it’s sensible to build in some sort of lag time between nomination and confirmation in comparing confirmation rates across administrations.  If you instead look (as both the NYT and the corrected LA Times do) simply at how many nominations made during a period were confirmed during that same period, you end up including nominations that were made near the end of the period that could not reasonably have been acted on within that period.  So a president’s lower rate during that period may simply reflect the fact that he made more nominations very late in that period.

(3) As Russell Wheeler’s recent figures in my earlier post show, there is no meaningful difference between the confirmation rate of Obama and Bush lower-court nominees.


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