Bench Memos

Law & the Courts

A Partisan Double-Standard?

(Photo: Photographerlondon/Dreamstime)

On May 10, Senate Judiciary Committee Democrats released a report titled “Review of Republican efforts to Stack Federal Courts.” This is the third in a series (previous posts here and here) evaluating its claims.

The report asserts that including more than one appeals-court nominee in a single confirmation hearing “hampers the ability of senators to adequately vet each nominee.” It doesn’t specify how much vetting time is necessary, but President Trump’s appeals-court nominees have had a Judiciary Committee hearing, on average, 74 days after their nomination.

The report’s list (on page 14) of hearings “with two Trump circuit court nominees” covers only 2017. That’s curious because the most recent such hearing was on March 21 and included Seventh Circuit nominees Amy St. Eve and Michael Scudder. Even though that hearing occurred a mere 34 days after their nomination — less than half the average for Trump nominees — Democrats apparently had enough time to vet them. That might have been because they were recommended by Senator Richard Durbin (D., Ill.) the Democratic whip.

The report also does not disclose that the last several Judiciary Committee chairmen, of both parties, have held at least 45 hearings with multiple appeals-court nominees. Chairman Orrin Hatch (R., Utah) for example, held eleven hearings which included multiple appeals-court nominees from President Bill Clinton. There is no record that Democrats ever complained about insufficient time to vet those nominees. Some might suggest that this appears to be a partisan double-standard.

On page 5, the report claims that Republicans have “ignored ‘not qualified’ ABA ratings.” Here, too, the report’s list (on page 19) of examples is oddly incomplete. It includes only the few that were unanimously rated “not qualified.” That qualifier, however, does not come from the ABA, which clearly states (in bold letters, as here): “In all circumstances, the majority rating is the official rating.”

Looking at the ABA’s ratings the way the ABA does shows that ignoring “not qualified” ratings is standard Senate confirmation practice. The Senate has confirmed eight nominees to the U.S. District Court rated “not qualified” by the ABA, one by a 98-1 vote and the others without a roll-call vote at all. Vanessa Bryant, for example, was rated “not qualified” for appointment to the U.S. District Court in Connecticut, yet she was confirmed by voice vote. At Bryant’s confirmation hearing on September 26, 2006, when George W. Bush was president, then-Connecticut attorney general Richard Blumenthal told the Judiciary Committee to ignore her “not qualified” rating because the ABA used “anonymous, unidentified, unnamed sources” in its evaluation process. Blumenthal, of course, is now a U.S. senator, a Judiciary Committee member, and a signatory of the report that says “not qualified” ratings should not be ignored. (In case anyone is wondering, the ABA still uses anonymous, unidentified, and unnamed sources in its rating process.)

Here’s a different take on ignoring ABA ratings. The Senate has so far confirmed 21 of President Trump’s appeals-court nominees; 17 of them (81 percent) received the ABA’s top “well qualified” rating. Despite their concern about ignoring ABA ratings, an average of 40 Democrats — 80 percent of the Democratic Caucus — voted against those nominees. In fact, the fewest negative votes for any of these nominees was 21.

In contrast, during President Obama’s first two years, the Senate confirmed 16 of his appeals-court nominees; eleven of them (69 percent) received the ABA’s top “well qualified” rating. An average of seven Republicans — 17 percent of the Republican Conference — voted against those nominees. In fact, five of those nominees had no opposition at all. Again, some might suggest the appearance of a partisan double-standard.

Editor’s Note: An earlier version of this post stated that Barack Obama was president in 2006. In fact, George W. Bush was president then.

Thomas Jipping — Thomas Jipping is deputy director of the Meese Center for Legal and Judicial Studies and senior legal fellow at the Heritage Foundation.

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