Bench Memos

Re: Obama Names Three D.C. Circuit Nominees

On Tuesday, when President Obama named three new nominees to the D.C. Circuit, he asserted (and then reiterated) that his nominees have waited three times longer for confirmation than President George W. Bush’s. I’m not exactly sure where he came up with that data, but he appears to be citing the number of days between a committee vote and confirmation by the full Senate. Of course most members of the press dutifully reported the statistic, notwithstanding the fact that it is pure spin. The more relevant statistic, if one is concerned about the amount of time it is taking the Senate to consider nominees, is the time between nomination and confirmation. By this measure, President Obama is actually performing better than President Bush. A Brookings Institute study found that as of December 2012, President Obama’s Circuit Court nominees had waited an average of 240 days, while President Bush’s nominees waited 283 days.

The claim that Republicans are somehow engaged in “unprecedented” behavior with respect to nominations is especially silly in light of the genuinely unprecedented behavior of Senate Democrats during President Bush’s term (not to mention how Democrats treated Judge Bork and Justice Thomas). As the Wall Street Journal elaborated yesterday:

He might have added, but somehow didn’t, that the Senate also too often failed to do that “duty” when George W. Bush was President. You could even say that Senate Democrats invented the filibuster against D.C. Circuit nominees. Who can forget the successful Joe Biden-John Kerry effort to defeat the distinguished appellate lawyer Miguel Estrada mainly because he is Hispanic and might make it to the Supreme Court someday? And how about the denial of a vote for 918 days to Peter Keisler? Both men had majority support but weren’t confirmed because Democrats set a standard of 60 votes.

President Obama joined in on this unprecedented obstruction. As a senator, he was the first U.S. president to have supported the filibuster of a Supreme Court nominee (Justice Alito), and he voted against cloture on the nomination of the following appellate judges: 

In 2005, he defended the filibuster, stating: 

I understand that Republicans are getting a lot of pressure to do this from factions outside the Chamber, but we need to rise above ‘‘the ends justify the means’’ mentality because we are here to answer to the people—all of the people, not just the ones who are wearing our particular party label.

Again, I urge my Republican colleagues not to go through with changing these rules. In the long run, it is not a good result for either party. One day Democrats will be in the majority again, and this rule change will be no fairer to a Republican minority than it is to a Democratic minority.

Despite all this, the press still seems perfectly willing to carry the message that Republicans are responsible for weaponizing the judicial-confirmation process. But, as Senator Grassley pointed out:

Since President Obama was elected, the Senate has confirmed 193 lower court nominees. Only two were defeated. That’s an excellent record, especially compared with the 10 circuit nominees Democrats filibustered during the Bush years, ultimately defeating five.

With respect to the D.C. Circuit itself, President Obama would have you believe that it is in some sort of crisis. But the facts tell a completely different story. As the Wall Street Journal explained back in May:

Last year the D.C. Circuit saw 108 appeals per authorized judge, compared to roughly four times as many on the Second and Eleventh Circuits—the country’s busiest. And the court’s workload is trending down. Even if the court had only eight authorized judges, its docket would still be among the lightest in the country.

Ed Whelan has also pointed out that the D.C. Circuit has the equivalent of 11.25 judges, considering the contributions of senior-status judges. This is 0.25 more than the Circuit’s allocated 11 seats for full-time judges, and further evidence that the D.C. Circuit is under-worked.  

The court doesn’t need new judges. As others have noted, Obama’s three nominees are a brazen attempt to pack that court for the purpose of insulating his vast expansion of the administrative state from judicial review. To quote another Wall Street Journal editorial:

Mr. Obama didn’t explicitly state the threat portion of that ultimatum—he’s leaving that dirty work to the reliable Harry Reid. But everyone knows that’s the subtext of Tuesday’s announcement, which is a political attempt to realign the balance of power on an appeals court that has frustrated the Administration’s regulatory overreach. . . .

But the ideology is less important than Mr. Obama’s attempt to pack a court that is often considered the second most important in the country and a proving ground for future Supreme Court Justices. The D.C. Circuit is also the main judicial referee for all manner of ill-conceived regulations and other bad ideas from this executive branch. Mr. Obama is still sore, for example, that earlier this year the court ruled that his non-recess recess appointments to the National Labor Relations Board are unconstitutional. Don’t they know judges are supposed to rubber stamp liberal laws?

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