This is the sloppiest thing I’ve ever seen written by Orin Kerr:
A decade ago, the Bush Administration caused some controversy when it excluded the ABA from having a formal role in evaluating judicial nominees. To the Bush Administration, the ABA was just a liberal advocacy group pretending to represent the legal profession as a whole. There was no reason to give such a group a special formal role in the nomination process.
On Wednesday, the President of the ABA helped confirm this perception by by wading into the quintessentially political question of scheduling confirmation of judicial nominees in the months before a Presidential election. With President Obama’s Term coming to an end soon — and an election that might bring a Republican to the President just a few months away — the ABA “exhort[ed]” the Senate to act quickly to confirm Obama’s nominees. Specifically, the ABA urged the Senate to schedule floor votes on three specific circuit nominees in the remaining 10 days of June, and then to schedule floor votes on district court nominees “on a weekly basis” thereafter.
This isn’t the first time an ABA President has urged the Senate to confirm Obama’s judicial nominees. Indeed, it seems to have happened for the last three years in a row. In 2011, ABA President Stephen Zack urged the Senate to quickly confirm 20 specific Obama nominees. In 2010, ABA President Carolyn Lamm made a very similar pitch.
Did the ABA ever urge the Senate to confirm nominees during the Bush Administration? Not as far as I can tell. I looked around for similar letters before the Obama Presidency, but I couldn’t find any.
Why would the ABA urge the Senate to confirm nominees during the Obama admin and not during the Bush years. Is there a possible answer other than that the ABA is a “liberal advocacy group?” Why yes, I think there is a reason why:
Yesterday, the Senate confirmed Judges Jacqueline Nguyen, Kristine Gerhard Baker, and John Lee to the Ninth Circuit and to federal trial courts in Arkansas and Illinois — bringing to a close a 14 judge deal Senate Majority Leader Harry Reid (D-NV) forced Minority Leader Mitch McConnell (R-KY) to strike when Reid threatened to force 17 votes to break Senate Republican filibusters of 17 different nominees. As we explained two months ago when this deal was struck, the deal represents a significant uptick in the rate of confirmations under President Obama, but it is far from enough to undo the three year campaign of obstructionism McConnell led the minute President Obama took office.
According to the Federal Judicial Center, Presidents Bill Clinton and George W. Bush both had very similar judicial confirmation rates — 201 lower court judges were confirmed during Clinton’s first term, and 204 judges were confirmed under Bush. President Obama, by contrast, has seen only 142 judges confirmed so far according to the FJC’s data — or less than four judges for each month of his presidency. In order to catch up to his two predecessors, Obama will need to double that rate to about 7.5 judges a month for the rest of his current term.
Imagine that. Republicans grind the confirmation process to a halt, a non-partisan legal group notices this and urges the Senate to stop the obstruction and put judges on the bench, and this very reasonable reaction to Republican perfidy “confirms the perception” for Republicans that the ABA is a liberal advocacy group (and, as always, this “perception” goes back to the certifiably insane Robert Bork).
There is literally nothing out there that the right-wing won’t use to convince themselves they are the underdog and the victim, including, as we’ve seen here, THEIR OWN OBSTRUCTIONIST BEHAVIOR.
*** Update ***
Remember this:
Earlier this week, seven Republican-appointed federal judges co-signed a letter warning of the consequences of the GOP’s systematic obstruction of President Obama’s judges. The letter from the Judicial Council of the Ninth Circuit, which includes Republican appointees Alex Kozinski, Ralph Beistline, Vaughn Walker, Irma Gonzales, Frances Marie Tydingco-Gatewood, Richard Frank Cebull, Lonny Ray Suko, explains…
I’m sure there will be a convenient way to smear and dismiss them. They’re RINO’s. No, wait- They have a book to sell! Yeah, that’s the ticket!
David in NY
Does Orin Kerr litigate on a regular basis? It probably just slipped his notice that there aren’t enough judges out there. Because a minority of the Senate is blocking them.
Right. He’s not usually dumb.
Napoleon
Hasn’t Roberts also urged the Senate to confirm the nominees?
smintheus
@David in NY: Modern Republican politics makes people dumber.
Jay in Oregon
Just throwing this out there again: Victim Identity: I’m Not Okay, You’re More Not Okay
The nut graph:
shortstop
Breaking: Monsignor Lynn found guilty on one count. HURRAH! Weird–I was just thinking, “What’s going on in that case?” I googled it and found the 12-minute-old verdict.
Hill Dweller
@Napoleon:
This. Also, too, a group of Republican nominated judges sent a group letter to congress begging them to speed up the confirmations.
The Senate Republicans shattered filibuster records since Obama was sworn in as part of their strategy to obstruct everything.
The media said nothing…
trollhattan
Used to read Volokh a loong time ago but found they suffer from Ol’ Perfesser syndrome–constantly on guard against eeeevil librul assaults on our precious founders’ Freedoms(tm) and blind to the reality it’s
mostlyall from the right. i.e., worthless.El Cid
Why do you have to do all this taking-into-account of the substance of an issue, as though there were ‘evidence’ and ‘arguments’ which might be of relevance?
What matters is stances, positioning, the placement of issues along any scale chosen at any moment by the most powerful establishment figures, ideally conservative establishment powerful figures?
Sure, ‘this nominee’ blah blah blah and ‘this nomination’ blah blah blah, but people who really care about this company are focused on more important stuff.
Exactly how many guests would you prefer to feel uncomfortable on some TV roundtable discussion? My god, man, think of the children.
superking
The obvious smear: The 9th Circuit is the most liberal court in the country!
Scott S.
Isn’t everyone at Volokh a libertarian anyway? Gee, I wonder why they’re on the GOP’s side so consistently…
Zeke
Disclaimer: I haven’t examined the data. I relied purely on this post.
The premise of Republican obstructionism is not neccesairly supported by the facts proffered. Providing raw confirmation totals tells us little about how obstructive the Senate Republicans have been. Pretend the President only nominated one judge and the Senate confirmed the nomination. Under this metric the Senate is obstructionist. What we need to discover obstructionism is % rejected or confirmed. This would allow apples to be compared to other apples. The Republicans may very well be obstructionist (whether that is good or bad is a different discussion), but the evidence proffered to support that premise in this post is flawed.
jl
In related both sides do it news:
Report: Issa Staffer Offered To Stop Holder Contempt Vote For DOJ Scalp
Ryan J. Reilly June 22, 2012 TPM
‘ DOJ officials think the offer to drop the contempt vote in exchange for Breuer’s scalp was further evidence that Issa’s investigation was more about making headlines than determining facts.
“The reason that this contempt motion happened is that Issa didn’t come up with any evidence and didn’t get a scalp,” Matthew Miller, DOJ’s former communications director, told Klaidman. “When you set expectations that high and you don’t deliver, you have to explain why.” ‘
http://tpmmuckraker.talkingpointsmemo.com/2012/06/report_issa_staffer_offered_to_stop_holder_contempt_vote_for_doj_scalp.php
I think some commenters were very concerned about having a independent, thorough, careful (not sure those were three exact words, but close) investigation to find out the truth. I agreed, except said I would want one that was competent and honest as well.
But looks like Issa was saying “give us Breuer and we’ll call of the dogs”
SFAW
Maybe Obama should nominate Janice Rogers Brown, see if that gets any action from the Rethugs.
Nah, I’m sure they’d hold it up because they’re so principled.
comrade scott's agenda of rage
Federal judges, including movement conservatives, and this includes the Sooopremes, have an agenda once on the bench but they also have a fair sense of what the judiciary does and means for the country. Therefore, they’re not concerned about the politics of future judges appointed from a president of the opposing party. They’re concerned about having enough judges to do the fucking job.
Per a question above, yes, the Chief Justice asked the Senate last year to approve Obama-nominated judges:
http://www.theblaze.com/stories/enough-politics-john-roberts-calls-on-senate-to-approve-obama-nominated-judges/
It really does cut across party lines over on the judicial side of the gubmint.
The thing is, Senate Republicans are doing what they were elected to do: stack the judiciary with movement conservatives when a Repup is president and slow things to a grinding halt when it’s a Dem. It’s one reason why the Federal judiciary has swung so far to the right over the last 30 years.
Again, these guys play the long game to take over all the federal gubmint. Elections come and go but if you do this right, and Senate Repups have, you can take control of the judiciary for, effectively, 2 generations.
Tehanu
Is Robert Bork still alive?
Why?
Maude
@Tehanu:
Same reason as Cheney.
Bobby Thomson
@David in NY: Kerr’s not dumb. He’s just a dishonest asshole.
David Hunt
@Maude:
I doubt that. I Bork really had sold his soul to the Devil, I’d think that he would have managed to get confirmed to the Supreme Court.
Bobby Thomson
@Scott S.:
Libertarians are Republicans who like reefer and/or anal sex.
Lurking Canadian
But the Dems voted against Bork before many current voters were born, so both sides do it.
burnspbesq
This is surprising. I had previously not considered Kerr a partisan hack. I may have to reassess.
burnspbesq
@SFAW:
Don’t even think that. Not even as a hypothetical.
Jonathan H. Adler
I’m surprised at the sloppiness in a post accusing someone else of being sloppy. President Obama has made judicial nominations at a far slower rate than his predecessors. Nonetheless, the rate of confirmation of his nominees is comparable (slightly slower for district courts, slightly quicker for appellate nominees). Further, as Orin noted, the ABA has made an equivalent statement for the past three years, so it’s not a response to the regrettably slow rate of confirmations.
Horrendo Slapp (formerly Jimperson Zibb, Duncan Dönitz, Otto Graf von Pfmidtnöchtler-Pízsmőgy, Mumphrey, et al.)
Against my better judgement, I read some of the comments after that piece. I don’t know why I do that; I’m a pretty healthy guy, but that doesn’t mean I need to try to make myself less healthy…
Anyway, I came across this comment. It has to be some kind of instant classic. I’ve seen paranoia and bigotry and idiocy and delusion, but never so flawlessly distilled in one short, pithy post:
I don’t know who O’Sullivan is, but he must be so proud that this frantic idiot is quoting him.
Brachiator
@comrade scott’s agenda of rage:
But of course, part of the point here is that the obstructionism has accelerated. Clinton and Bush had roughly the same number of nominees be confirmed during their first terms. I wonder what’s different about Obama?
The other issue here is that the obstructionism doesn’t just serve to get conservatives onto the bench, it puts a burden on all judges and wreaks havoc on the judicial system. And all for partisan political gain.
Brachiator
@Horrendo Slapp (formerly Jimperson Zibb, Duncan Dönitz, Otto Graf von Pfmidtnöchtler-Pízsmőgy, Mumphrey, et al.):
I didn’t know who he was either. Chief Wingnut, International style.
George Will has approvingly paraphrased some of his quotes.
Judas Escargot, Acerbic Prophet of the Mighty Potato God
@Horrendo Slapp (formerly Jimperson Zibb, Duncan Dönitz, Otto Graf von Pfmidtnöchtler-Pízsmőgy, Mumphrey, et al.):
It comes from this old NRO article from 1989, apparently.
And there’s a Conquest’s Second Law (coined by a ‘Sovietologist’), too.
Horrendo Slapp (formerly Jimperson Zibb, Duncan Dönitz, Otto Graf von Pfmidtnöchtler-Pízsmőgy, Mumphrey, et al.)
@Brachiator:
Huh. I’d never heard of him. I wonder if he foams at the mouth as paranoiacally as the guy who invoked his law. These people really have serious problems.
The guy says, “The only solution is eternal savage war against the government beast and its bastard offspring in the non-profit world.” As a non-profit bastard, all I can say is that I don’t have any interest in bringing down capitalism or putting capitalists in GULags. Maybe I’m not living up to my responsibilities, I don’t know. But nobody ever told me any of this. All I’m interested in is helping some children in Honduras get schooling. I guess I must be a real let down to Gramsci…
John Cole
The only way this statement would make any sense whatsoever as a defense of the tragically slow confirmation process is if there currently were no nominees waiting for confirmation and the Senate was just sitting idly by. Then, maybe you could pin the slow confirmation process on Obama, but as a defense right now, it’s laughable. According to JudicialNominations.org, there are currently 32 people waiting for confirmation. How would more nominees would get those 32 voted on faster?
I guess the Federal Judicial Center is just lying, because as stated in the post, “According to the Federal Judicial Center, Presidents Bill Clinton and George W. Bush both had very similar judicial confirmation rates — 201 lower court judges were confirmed during Clinton’s first term, and 204 judges were confirmed under Bush. President Obama, by contrast, has seen only 142 judges confirmed so far according to the FJC’s data — or less than four judges for each month of his presidency.”
The confirmation process has been regrettably slow since day one.
MobiusKlein
@Bobby Thomson: Here is proof:
Kerr claims the ABA urged confirmation.
The ABA letter urges floor votes, which is a different thing.
But I’m just reading the words, so whatever.
Berial
Are the comments in the link provided typical of “The Volokh Conspiracy”? If so, why do you, or anyone, bother with reading ANYTHING from that site? The typical post over there has about as much in common with reality as a … hmm…I can’t think of anything as divorced from reality as those posts. They’ve stumped me.
SFAW
I know, I don’t know what came over me.
After seeing what I had done, I made myself stand in the corner.
Roger Moore
@Bobby Thomson:
FTFY. GOProud and the Log Cabin Republicans (not to mention a whole horde of GOPers who are still in the closet) are proof that you can like anal sex and still call yourself a Republican.
El Cid
This is a case in which the question would not be limited to a comparison of the ratio of votes to approve versus votes to disapprove nominees, but any differences in the rate at which nominees are granted confirmation votes at all.
It’s not necessarily something reducible to a single number, but it’s certainly not the sort of thing sensibly analyzed by the percentage approved versus voted down.
That would be an utterly inane thing to purport to study, not least because the numbers involved are very low and the percentage would therefore be available at all times.
Mike G
Methinks they have them confused with ABBA. Being Swedish and in the entertainment industry, the rabiesphere assumed they were leftist.
leo marvin
Bobby Thomson Says:
You can believe that if it makes you feel good.
As a liberal, regular reader of Volokh, I’ve found Orin Kerr to be one of the most honest, thoughtful commentators of any ideological stripe on the Internet. In fact, the inevitable quota of idiotic comments notwithstanding (like the one Horrendo Slapp quoted above), you’ll find a robust, balanced debate on most Volokh threads. That’s testimonial to the environment fostered by most of the bloggers there, all of whom I disagree with on just about everything.
Believe it or not, somebody saying something you disagree with or don’t like doesn’t make them dishonest.
I agree with John that the more relevant metric in this case is the number of judges approved, not the rate of approval.
Jonathan H. Adler
@John Cole:
When district court vacancies last, on average, over a year before a nominee is named, the rate of nomination matters. When the amount of time from nomination to confirmation is measured in months (as it has been for the past 20 years) the rate of nomination matters. As it happens, Obama’s appellate nominees are being confirmed at a much faster rate than Bush’s — almost two months faster — and yet the ABA suddenly decided to talk about appellate nominees (and relatively recent ones at that).
As for the FJC stats, to measure the rate of conifirmation you have to account for the number of nominees and the speed at which they’ve been confirmed. Yes Obama’s absolute numbers are lower, but he’s also nominated far fewer — so many fewer that it would be virtually impossible for him to get as many judges confirmed. In recent years it’s become rare for someone not nominated in the first three years to get confirmed. And in the first three years of his term he only made 170 nominations. By comparison, Bush and Clinton made 212 and 214 respectively. Whereas under Clinton and Bush made sure there nominees pending for most nominees, this Administration has not. Indeed, at the end of Obama’s first year there were fewer pending nominees for fewer than one in five vacancies.
As for how slow the confirmation process is, it’s been too slow — way too slow for my tastes — but the rate of confirmation of Obama’s appellate nominees — about which the ABA commented — has been faster than for President Bush. The real (and unprecedented) slowdown has been with district court nominees.
The fight over judicial nominations has involved an escalating game of tit-for-tat for over 25 years now. If the ABA were concerned about this — as it should be — it would have made efforts to outline neutral principles for the consideration of nominees. Yet after remaining silent when multiple, highly rated nominees were filibustered, and after the speed of confirmation for appellate nominees improves, the ABA urges action on a few recent nominees it likes. That certainly justifies Orin’s claim that the ABA has picked sides.
Jonathan H. Adler
One other quick point. As of 5/31, there were only 31 pending nominees (but 74 vacancies). So even if all of his nominees were confirmed tomorrow, President Obama couldn’t match the numbers set by his predecessors.
This NLJ story also provides a good overview. I blogged it here.
John Cole
@leo marvin:
I agree with much of that- most particularly that kerr is honest and intelligent. Kerr is not Instapundit or Ed Whelan. That’s precisely why I was shocked to read that sloppy post today.
John Cole
@Jonathan H. Adler: Dr. Adler, we are simply speaking past one another. You seem to think there is a direct relation to the speed of confirmation with the speed of nomination. Your argument is basically “Sure, fewer judges have been confirmed, but it is Obama’s fault for not nominating enough.”
That’s specious, at best. The only way Obama could be blamed for a lack of confirmed judges would be if there were no nominees waiting for floor votes. As it is, there are dozens waiting for votes, and you’ve provided no evidence whatsoever that a couple more dozen nominees would speed up the rate of floor votes. I have no doubt (and really, you don’t either) that if the Senate were to either confirm or vote down the existing nominees, the Obama administration would rapidly make more nominations. But, until the existing batch of blocked judges are dealt with, why would they?
Some specific responses to your remarks. First, you stated the following:
You can’t have it both ways. Is the ABA suddenly talking about this, or have they been discussing this for three years, as Kerr stated. Which is it?
So now it is incumbent on the ABA to come up with procedures to speed the process? What would be the point- the partisans in the GOP would merely ignore it, because after all, they are just a “liberal advocacy group.” As to the ABA, in your words, “liking” the nominees. I read the letter that Zack wrote. Every nominee they mentioned was a consensus nominee. It had nothing to with candidates they liked, it had to do with candidates that, as the letter clearly stated, were “consensus” nominees, people who received NO vocal opposition.
Additionally, one minor nitpick. Kerr states that the ABA is asking for the confirmation of these judges, when in the letter they state no such thing. All they are asking for is quick action on a floor vote. The natural assumption is that consensus nominees would be confirmed, but nowhere did the ABA demand confirmation.
You’ve been around long enough to when “up or down” vote was a Republican mantra. What changed?
General Stuck
I’ve been a Senatephile for a decade now, and especially when the republicans and Bush were in charge/ And up until recently, the obstruction of Obama’s nominees has been far more onerous than under Bush. For all sorts of tactics. delayed hearing, pocket vetoes, and inexplicable stalling tactics where both parties supported a nominee.
It looks like the Senate GOP has stood down from this, for fear of looking like the obstructionists they have been up until a couple months ago, on not only judges, but belligerent refusal to act or not filibuster any number of high ranking executive branch appointees.
Here is a good article, I think, to explain what has and is currently happening on this front. And I suspect Obama has fallen behind in the nominee process, precisely because of the frustration from wingers record filibustering of about anything that comes to the senate with Obama’s name on it.
General Stuck
@General Stuck:
From the above link
I think that is called burning the candle at both ends, or cake and eat it tooism.
Maude
@General Stuck:
How can Obama nominate someone and have that person wait forever to get a vote?
Joe
Orin Kerr isn’t “Ed Whalen” but he cites him here.
Kerr knows how things work here. He was a clerk. He was a special assistant to the Republican side on the Senate Judiciary Committee during the Sotomayor confirmation. etc.
At times, Kerr — who is overall one of the good ones on his side — does use some lazy thinking and his passive aggressive tendencies can get a bit dubious.
He can’t quite understand something that he might understand if he thought about it a bit better.
General Stuck
@Maude:
I don’t have a figure from appointees denied a vote, or a hearing objected to by republicans. But the question is also, who would want to accept a nomination with the scorched earth obstructing we’ve seen the past 3 years? Democrats didn’t block hearings when they were in the minority under Bush. They did threaten filibusters for but a few of Bush’s appellate nominees. And republicans were going to use the nuclear option for those few. Any comparison with Obama and Bush, and behavior of democrats and republicans in swapped positions is ludicrous.
Jonathan H. Adler
@JohnCole —
There has to be a nominee for there to be a confirmation. The more nominees in the pipeline, the more will get confirmed — and the more political pressure there is for movement. Those nominees named in the first three years have been. Even if ALL of Obama’s nominees were confirmed, he couldn’t match Bush’s numbers — and it’s not close. If all of Obama’s nominees got votes — as I wish they would — I DO doubt “the Obama administration would rapidly make more nominations.” On average it’s taken them over a year — 399 days to be precise – to make nominations for district court vacancies. No recent administration has been that slow.
You’re right my comment about the ABA suddenly coming around to this issue was sloppily put.
As for your question — “what changed?” — the filibusters of Bush nominees. As Senator Sessions explained after voting to filibuster David Hamilton, Republicans will not accept a de facto requirement of 60 votes for GOP nominees but 51 votes for Democratic nominees. In the same op-ed he reiterated his desire to return to a norm of up-or-down votes for all nominees. Democrats should call him on it — reintroduce Sen. Leahy’s old bill requiring votes within a certain number of days of nomination and eliminate filibusters for nominations — and make it take effect after the next election. The activist groups like PFAW won’t like it, but it would be a positive change.
@GeneralStuck — Hearings have been much quicker for Obama’s nominees than Bush’s. Where there have been delays is before nomination (due to the White House) and between hearings and votes (due to GOP foot dragging).
General Stuck
@General Stuck:
should be “pocket filibusters”
General Stuck
@Jonathan H. Adler:
Okay, I’ll take your word for this, as I’m not sure the minority of either side has the ability to prevent a hearing, though the blue slipping, or pocket filibusters still are used, I think. But it is a minor point considering the minorities options to delay an up or down vote.
John Cole
@Jonathan H. Adler: I feel like we are singing John Jacob Jingle Heimer Schmidt or 99 Bottles of Beer on the wall. You state in order for there to be a confirmation, there must be a nominee. However, we have dozens of existing nominees, yet there is no confirmation vote for them. Why would more nominees speed up the process? You’ve never given any evidence that that would be the case. Any reasonable observer of the current obstructionist behavior of the GOP would conclude that more nominees would lead to… more people waiting for a confirmation vote.
Not more confirmations. I’m eagerly awaiting any evidence that would suggest that more nominees would persuade a recalcitrant and cranky Republican minority to agree to more confirmation votes.
Horrendo Slapp (formerly Jimperson Zibb, Duncan Dönitz, Otto Graf von Pfmidtnöchtler-Pízsmőgy, Mumphrey, et al.)
@Jonathan H. Adler:
I really don’t understand this. You said yourself there are 31 judges awaiting a vote, and 74 spots open altogether. How would 74 judges waiting be any better than 31? I mean, it isn’t like you have to take each judge in order, and Obama hasn’t chosen the one for openng number 17 yet, so everybody after 17 has to wait for that one to get filled.
The Republicans could stop dicking around tomorrow, and all 31 judges would get a vote, and, I’m guessing, get 51 or more votes. If that happened, then I don’t doubt Obama would name a whole bunch of other people for the other openings. But it isn’t like the Republicans have no choice but to throw sand in the gears until they get all 74 nominees.
DougJ
@Bobby Thomson:
And Getty Lee. And role-playing games.
Mike Dixon
Shorter:
Cole: This is an ex-parrot!
Adler: These go to eleven.
Jon the Lawyer
The strategy Mr. Adler is employing here is to attempt to make the President look bad in this for not having nominated people.
But nominations are not cost-free. For example: Goodwin Liu, Elissa Cadish, and Edward DuMont all were stuck in limbo for months and months, some over a year, due to obstruction by Senate Republicans. These actions have direct and negative effects on not only the nominees’ personal and professional lives, but also on their viability as future nominees. Stalling a nominee is an effective way of ensuring that they become “damaged goods.” Either the nominee will give up, due to personal, political or professional pressures, including personal attacks from all manner of right-wing media, or the attacks will exact such a political toll that the President is forced to withdraw the nomination.
So in this situation where Republicans refuse to even let his nominees come up for a vote, the President acts rationally (which law professors like Mr. Adler should appreciate), and holds some of his nominations in reserve, so as to avoid keeping someone on the hook for months and months and months of endless attacks, uncertainty, and potentially career-impacting damage.
This is not hard to understand, even for a very junior lawyer like me, and I know that Mr. Adler is an intelligent law professor. Given Mr. Adler’s intelligence and expertise, the most likely rational explanation for him neglecting to address this or even to mention it is that he is choosing to not do so.
Xenos
The whole point of Volokh.com is to crowdsource fascist apologetics. That they do it under the banner of libertarianism gets them style points, but is really not very relevant. Liberty is best served by corporations controlling everything, really.
low-tech cyclist
I know, I know, call on meeeeeeee!!!!!!!!
WaPo, July 23, 2004:
That’s right, folks – Bush got 200 nominees through the Senate without any huhu, but the Dems filibustered TEN – and that was regarded as a tremendous abuse of their advise-and-consent role.
Meanwhile, Obama’s nominees get through in dribs and drabs. Just a wee bit of a difference. Sheesh.
El Cid
This is a related pair of empirical claims, or more precisely, empirical predictions.
They are statements about how the world actually is, dependent upon facts, or how things are likely to happen given an understanding of demonstrable facts.
Each one of these are questionable and certainly unproven.
What evidence is there for this? Is this merely some statement of an empirical generalization? If so, then it isn’t context or rule-dependent, so inapplicable.
Upon what evidence should we accept this prediction? It certainly could be the case, but I don’t immediately see the outlines of how a longer list of nominees changes any political dynamic already at work. At the very least, you would have to present an argument for how that fact would turn into effective political pressure. Implying it to be the case is very weak in this example.
These are two highly controversial, and unconvincing, empirical claims, and yet stated as though unchallengeable.
sparky
@El Cid: as you know, claims of this sort don’t need to be proven (or even provable), they only need be plausible, that is, pass the laugh test, to suffice as an argument. and in law and politics argument,
apparently, is sufficient.@General Stuck: i agreee.
Jamie
Juan Non-Volokh is having a bad day. I’ll drink a glass of upstate red in sympathy.
Little help- don’t defend things that are not defendable. I used to think you were not an asshat, even if we disagreed, I’m starting to reconsider that judgement.
Jonathan H. Adler
I’m surprised so many folks here object to the non-controversial claim that had President Obama made more judicial nominations earlier in his term he would have had more judges confirmed. Even Nan Aron of the Alliance for Justice has acknowledged this (in the article I linked above). I’ve spoken with Democratic staff on the Senate Judiciary Committee who acknowledge this too. Indeed, I was just on a panel on this subject last month with majority staff from the Senate Judiciary Committee (and staff from OLP and the White House). While various explanations for the low number of nominations were given (e.g. time spent on supreme court nominations), no one denied that had there been more nominations there would have been more confirmations.
Why does the rate of nominations affect the number of confirmations? One is sheer numbers — even if all of the nominations Obama made in his first three years were confirmed, he’d still be a few dozen short of Clinton and Bush, despite the high number of vacancies. Note also the eventual confirmation rate, measured by percentage of nominees confirmed, remains close to what it was under Bush.
Two is time. Processing nominees takes time. The primary means of obstruction, particularly for a minority party, is to slow things down — submitting post-hearing questions, holding over votes, refusing unanimous consent. So the earlier the process starts with a nominee, the harder it is for the minority party to run out the clock and the more likely it is to be completed, particularly since the confirmation rate traditionally slows in the last year of a presidential term.
Three is politics. Neither party has been willing to shut down the process completely – or even to try. So beyond just slowing things down, each party does things to relieve the political pressure that results from blocking nominations. Senator Leahy did this with Bush nominees by moving lots of district court nominees while blocking appellate nominees. Senate Republicans now do this by occasionally agreeing to provide unanimous consent to floor votes to groups of judges, as happened in March. The fewer nominees in the pipeline, the less political pressure there is to move them, and the less it is necessary for the obstructing party to acquiesce to more confirmations. (Another factor here is the extent to which the nominating party makes judges an issue, so as to increase the costs of obstruction. In this regard, it is interesting that Senator McConnell was willing to devote more Senate floor time to judicial nominations than Senator Leahy. Had he not done so, fewer Bush nominees would have been confirmed.)
Returning to the original post. The reality is there has been a pattern of escalating tit-for-tat over judicial nominations since the mid-1980s, with each party engaging in retaliation for the other’s obstruction. The Dems did it to Reagan and Bush’s nominees, the GOP retaliated and escalated against Clinton’s nominees, the Dems retaliated and escalated against Bush nominees, and now the GOP is retaliating and escalating against Obama nominees (particularly district court nominees).
Now that this has been occurring for over 25 years, there are no clean hands, and the only way to return to a system in which most all nominees receive relatively quick up-or-down votes is for there to be some grand bargain, and this bargain will require either a) the nominating party to do something to make up for the prior round of obstruction (e.g. renominate judges it had blocked) or b) agree to a neutral set of rules to govern all nominations at a set point in the future, such as after an intervening election the outcome of which is in doubt. We have a window now in which such a deal could be struck, but that window will close by August. Pretending one party or the other is solely responsible for getting us in to this mess won’t solve a thing.