Bench Memos

Lies, Lies, and More Lies

A few days ago the Washington Post’s fact-checker, Glenn Kessler, weighed in on President Obama’s assertion that his “judicial nominees have waited three times longer to receive confirmation votes than those of my Republican predecessor.” To his credit, Kessler gave the president ”two Pinocchios” for the claim, confirming my colleague Ammon’s previous analysis showing that President Obama’s appellate nominees are actually moving at a faster pace than his Republican predecessor’s.

One of the other lies we are likely to hear more as the D.C. Circuit fight intensifies is that Republicans are violating the terms of the long-expired “Gang of 14″ agreement, meant to avoid filibusters of judicial nominees. Last month, Senator Whitehouse pushed this argument (see 52:00 of this clip), saying that Caitlin Halligan’s nomination, currently filibustered, did not represent the “extraordinary circumstances” under which the agreement said senators could block nominees. According to Senator Schumer, the blocking of Halligan’s nomination “represented the demise of the Gang of 14 agreement that this Senate had operated under the last few years.”

The Whitehouse/Schumer argument has two fatal flaws:

1. By its own terms, the Gang’s agreement represented “an understanding among the signatories,” during the 109th Congress, not the entire U.S. Senate forevermore. Eight years later, only five senators remain from the defunct Gang (including just three Republicans), but, now that it suits their purposes, Democrats are trying to resurrect the agreement and impose it on all minority senators.

2. Further, Senate Democrats never stood by its terms when it was in place. For instance, Democratic senator Daniel Inouye voted to filibuster Brett Kavanaugh’s 2006 nomination to the D.C. Circuit.

Even if its terms had applied to later Congresses (as some have suggested), everyone in the Gang of 14 certainly did not seem to think so: Senator Mary Landrieu voted to filibuster Leslie Southwick’s nomination to the Fifth Circuit in 2007. And that seems to have represented the common understanding among Senate Democrats at the time: Twenty-five of them (including Senator Obama) voted to filibuster Justice Alito’s nomination, another 35 did so for Judge Southwick’s nomination, and 30 voted to filibuster Judge Kavanaugh’s nomination. Senators Reid, Durbin, and Leahy supported these filibusters every step of the way. 

Did these nominations represent “extraordinary circumstances”? If so, what were they? It could not have been that the American Bar Association questioned their qualifications, since each received either a “qualified” or “well qualified” rating.

Senate Democrats have given absolutely no reason for anyone to believe that they would ever treat Republican nominees fairly; instead, they’re just asking for Republicans to unilaterally disarm in the face of President Obama’s efforts to turn the D.C. Circuit into a partisan rubber stamp. As I argued in USA Today last week:

The [D.C. Circuit] issues some of the most significant cases, including many involving the constitutional validity of actions taken by the president and federal agencies. That role has recently subjected the court to intense criticism from Democrats, who are angry that the court (now balanced 4-4) has been enforcing constitutional limits on President Obama’s agenda.

In August, the court struck down an unlawful EPA regulation that would have forced energy companies to lay off workers and increase electricity costs. More recently, the court ruled that President Obama’s attempt to circumvent the U.S. Senate with his appointments to the National Labor Relations Board “eviscerate[d] the Constitution’s separation of powers” and “demolish[ed] checks and balances.” Unhappy with these rulings, Democrats are now angling to fill the D.C. Circuit with ideological cronies if that is what it takes to rubber-stamp President Obama’s agenda.

Senate Republicans aren’t taking the bait, and they shouldn’t.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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