The rush by Senator Harry Reid (D-NV) to push through President Obama’s latest judicial nominees before their records can be thoroughly reviewed is underway. On June 4, while announcing his nomination of three more judges to the U.S. Court of Appeals for the District of Columbia, President Obama repeated what has become a Democratic mantra: Republican senators are unfairly blocking judicial nominees with “unprecedented” use of the filibuster. It’s gotten so bad, the president noted, that his nominees wind up waiting three times longer than George Bush’s to be confirmed.
It’s a great tale of political victimization. But it’s a myth.
Since President Obama took office, the Senate has confirmed 201 of his judicial nominations, including two Supreme Court justices. If that’s a blockade, it’s mighty porous.
Indeed, the Senate has rejected only two of the president’s judicial nominees.
During George W. Bush’s presidency, Senate Democrats filibustered 10 judicial nominees, defeating five of them. Compared to Bush, President Obama enjoys a tremendous success rate with his judicial nominations.
Nor can Republicans be charged with unprecedented “slow-walking” of nominations. After all, Senate Democrats denied Peter Keisler, Bush’s nominee to the D.C. Circuit, a vote for almost three years. Compare that to the unanimous May confirmation of Sri Srinivasan for the same court, which is a far cry from the claim that Republicans “continue to hold up a record number” of judicial nominees.
Bush’s circuit court nominees had to wait an average of 283 days for confirmation after being nominated; Obama’s nominees have had to wait for 240 days.
Why, then, are there so many court vacancies? The main reason is the slowness with which President Obama has made judicial nominations.
He has nominated judges for only about a third of the current vacancies in federal courts — a significantly lower percentage than either George Bush or Bill Clinton.
Of the 33 declared judicial “emergencies,” President Obama has submitted nominations for only eight — and four of those came in June. It’s hard to see how this can be the Republicans’ fault when the Constitution specifically gives the president the power to nominate judges.
As for Mr. Obama’s plea back in June? There is no emergency or “urgent court” vacancy in the Court of Appeals for the District of Columbia that requires quick confirmation of the three nominees announced that day. In fact, the D.C. court is one of the most underworked courts in the nation.
In July 2006, eight Democratic senators led by Patrick Leahy (VT) and Chuck Schumer (NY) sent a letter to Arlen Specter, then the Republican chairman of the Senate Judiciary Committee, asking for a postponement of Peter Keisler’s confirmation hearing for the D.C. Circuit. Why? Because the court’s workload “did not warrant” more judges. They pointed out that, since 1997, “by every relevant benchmark, the caseload for that circuit has only dropped further.”
In 2006 when the senators complained about the Circuit’s low workload, there were 1,380 appeals filed with the court. Last year, there were only 1,200.
As the Wall Street Journal noted, the D.C. Circuit has only “108 appeals per authorized judge, compared to roughly four times as many on the Second and Eleventh Circuits.”