March 18, 2005
POLITICS: There Goes Da Judge
Gerry Daly has a great why-didn't-I-write-that post breaking down the rates of Senate confirmation for each president's noominees for the federal Courts of Appeal going back through Truman. The numbers here punch a hole in the Democratic talking points that seek to obscure what's going on by lumping in District Court nominees, who will wield a good deal less national influence.
Here's the key table, showing the percentage of nominees to get approved, although you should be sure to read the whole thing:
One of these things is not like the others . . . Gerry traces the break in the pattern to Reagan, although I'd point to the last years of the first President Bush, when George Mitchell decided to bottle up all of his nominees and run out the clock to the election. Either way, things got significantly worse under Clinton, but the Clinton experience was nothing compared to the wholesale obstruction we're seeing today, which is all the worse because it's obstruction of nominees with majority support.
UPDATE: I fixed the Bush number up from 36.8% to 40.7% - Gerry had been counting in 9 judges who were actually nominated by Clinton in January 2001, due to the fact that the Congress elected with Bush was already in session. I agree with him that those shouldn't be counted for Clinton, either, since they were basically lame-duck stunt appointments (although John Marshall might disagree).
SECOND UPDATE: Dales explains why the number looks high:
I went to the Library of Congress search engine on Presidential nominations, and chose a search on all nominations referred to the judiciary committee during the 107th Congress, and then counted how many nominations were to Circuit Courts. The correct number is 61.
It took me a while to find exactly why the numbers were different.
The difference is thanks to Tommy Daschle, who (in another unprecidented move) adjourned the Senate for sufficient time in the summer of 2001 so as to return all of the pending nominations, forcing the process to start over for all of them.
That's technically true, if you're counting nominations rather than judges, and it does give a flavor of the duration of the obstruction at issue here, but I would not count those guys twice. Then again, I'm not sure how many judges are similarly double-counted in the prior administrations, since he appears to use a consistent methodlogy (i.e., this also double-counts anyone Clinton renominated in consecutive sessions). I'm pretty sure we're still at a number significantly lower than the Clinton years once you adjust, but I can't have a lot of confidence in the table at this stage.
THIRD UPDATE: Gerry has more in the comments, one conclusion of which is that - as far as the actual percentage of different individual nominees who were confirmed, the numbers are 73% for Clinton and 61% for Bush. Note that a lot of the Republican efforts to stymie Clinton gave way in his second term, while the Democrats are pledging to shut down the Senate over this. (Also, Clinton nominated two Supreme Court justices who have been reliably liberal votes on nearly every significant issue, and both were easily confirmed; just try to imagine Democrats giving similar consideration to Bush appointees who would vote as consistently conservative as Ginsburg and Breyer have been consistently liberal).
I actually don't object to the use of the filibuster for limited purposes in judicial confirmation fights - to delay a nomination sufficiently to ensure adequate fact-finding and to buy some time to build opposition to a nominee. Although, in the usual case, most of that function is discharged by the process of having the Judiciary Committee conduct a reasonable investigation of the nominee. But that's worlds away from the present system, in which the Democrats are insisting that it is right and proper that a nominee chosen by a duly elected president and supported by a majority of duly elected Senators can and should be prevented indefinitely from getting a vote.
Of course, even this analysis assumes that conservative and liberal judges are otherwise equally fair game. But they aren't; despite an extensive scholarly and media campaign dedicated to obscuring this reality, the simple fact remains that in the great majority of cases involving liberal/conservative splits over Constitutional matters, adopting the conservative position creates rules that can be overriden by democratically elected legislators, either in Congress or in the states, whereas in a large proportion of such cases, the liberal position, often with little or no explicit textual support in the Constitution, removes issues - the death penalty, abortion, same-sex marriage, etc. - from democratic debate (whereas the more "activist" conservative rulings, other than on the issue of racial preferences, at most tend to allocate power as between Congress and the states, leaving one or the other with the power to act). It is all the more illegitimate to use the tactics adopted by the Democrats in the service of permanentlt stripping democratically elected bodies of power to decide issues of importance to the public.
UPDATE: Dales also discusses the filibuster of Abe Fortas, which is precisely the type of limited filibuster I would approve of, but which may fall by the wayside as collateral damage of the Democrats' recent abuse of the filibuster. And, of course, the ability to filibuster legislation is an entirely separate controversy that shouldn't be affected by any of this.
The change came when the post-McGovern reform Democrats actually came to power. Radicalization.
That number for Bush nominees isn't close to what I've ever seen, anywhere. Something's fishy.
We're talking about court of appeals nominees, not total judicial nominees, so the figures for W are not surprising to me. It's not worth the Dems' time to block district court nominees, many of whom are recommended by senators and by the bar establishment (excuse me, I mean merit selection panels set up by or for the senators).
I was in the Sixth Circuit recently, and the presiding judge in the courtroom I was in announced that the court was grateful for the help of district judges sitting by designation because they had four vacancies. This was not a political pitch by a right-wing judge. It was a factual point made by one of the left-wing judges.
I'll admit that Gerry's number looks low to me. I'm open to suggestions.
If you go to the web pages of the Office of Legal Policy at the Department of Justice, you get (by my quick tally) 17 out of 32 confirmed in the 107th Congress (2001-02) and 18 out of 34 confirmed in the 108th Congress (2003-04). I don't have time to figure out how to deal with duplication. Without any adjustments, this comes to a little over half being confirmed.
Which still comports with a 40%-handle on the stalled number. 15/32 and 16/34 both work out to roughly 47%. I don't think that's wavable away so easily.
Here we go again with the "those rascally partisan Democrats standing in the way of Bush, God and patriotism" act.
Perhaps if Bush proposed candidates that were either more qualified (Myers for the 9th Circuit has never been a judge and has spent his career lobbying for the coal and cattle industries. Going to the 9th district which oversees the vast mojority of federal lands seems like either an interesting or extremely well-placed choice), less severely partisan (numerous candidates are staunchly opposed by scads of non-profit organizations and while you may think what you may about the NAACP isn't it the job of Senators to listen to their constituencies and act accordingly?) or try to do out of session nominations. It doesn't help that he re-nominates candidates that have already been rejected. It also does not help that Senate Republicans when faced with filibusters simply attempt to change long-standing Senate rules that allow the minority-party to have influence over how things are done (Hatch unilaterally overriding a committee Rule IV which requires that a minority-party member support a move out of committee) or attempting to reduce the number of votes to end debate on judicial nominations from 60 to 51.
You can get this stuff even from mainstream newspapers. I guess you can complain about Bush not getting his way but unlike the rest of his life the government is not set up for Bush to do whatever the hell he wants no matter what anyone thinks. Sometimes people get rejected because they should not have the job. Because GOP, Inc. would like to turn the government into one big branch by rubber-stamping everything Bush/Rove want Dems are forced into the only option they have to prevent this from happening. You know what? TFB. It is not as if GOP, Inc. has not gone down this road as well. Please.
Losing faith in the table! Oh ye of little faith.
I can't go back before Clinton (which should not be a big deal) but I can go back and look at Clinton and Bush in detail to do an apples-to-apples comparison of them.
I am working on it as we speak. So far, I have found that all three that were returned to him at the end of the 103rd were renominated in the 104th, and confirmed. I'll be posting when I get done with this analysis.
OK, I went back and looked at all of the nominations from Clinton and Bush. Basically, the norm is that anyone who is returned is renominated unless the President's party has changed. Only three of Clinton's returns from his first three Congresses were not resubmitted.
President Clinton nominated 22 people to the 103rd Congress to be Circuit Court justices. Three were returned, but all three were renominated and confirmed by the 104th Congress. The eventual confirmation rate for these nominees was 100%.
President Clinton nominated 17 new people to the 104th Congress to be Circuit Court justices, in addition to the three renominations. Of these 17 new nominations, 1 was withdrawn, 1 was returned and not renominated in the 105th, and one was renominated in the 105th, returned there, and then not renominated. The other 14 were eventually confirmed (although one had to wait until the 106th). The eventual confirmation rate for these new nominees was 82%.
President Clinton nominated 23 new people to the 105th Congress to be Circuit Court justices, in addition to seven who were renominations. Of the 23 new nominations, two were returned and not renominated. Two were renominated in the 106th only to be returned again and never confirmed. One was withdrawn. The other 18 were eventually confirmed. The eventual confirmation rate for these new nominees was 78%.
President Clinton nominated 28 new people to the 106th Congress to be Circuit Court justices, in addition to six renominations. 1 was withdrawn. 15 were returned. 12 were eventually confirmed (including one who was renominated by President Bush). The eventual confirmation rate for these nominees was 43%.
In aggregate, President Clinton nominated 90 people to be Circuit Court justices during the four Congresses during his term. 66 were eventually confirmed. The eventual confirmation rate for his nominees was 73%. He had 13 nominees who were returned but eventually confirmed. 12 of those were confirmed by the subsequent Congress.
In the 107th Congress, President Bush nominated 31 new people to be Circuit Court justices. 19 have eventually been confirmed, for an eventual confirmation rate of 61.2%, compared to Clinton’s 100% eventual confirmation rate for his first Congress’ nominations.
In the 108th Congress, President Bush nominated 21 new people to be Circuit Court justices. To date, 13 have been eventually confirmed, for a rate of 61.9%, compared to Clinton’s second Congress rate of 82%.
In aggregate, President Bush has nominated, for the first time, 52 distinct individuals to be Circuit Court justices. 32 have been confirmed, for an aggregate eventual confirmation rate of 61%, 12% lower than President Clinton’s despite the fact that three quarters of Clinton’s term had the Senate controlled by the Republicans. The eventual confirmation rate for Clinton's first three Congresses was a robust 87%.
You are right that this is a measure of the level of obstructionism without even going into that detail. The only time when there were in-Congress renominations of the same candidates were when Daschle pulled his maneuver. If one takes those out and just looks at unique nominations within a single Congress and the confirmation rate by the end of that Congress, then that makes Bush's rate 53.1% (meaning, 53.1% of Bush's nominees in any given Congress were confirmed by that same Congress, compared to 61.3% for Clinton, 77.8% for Bush the elder, 81.3% for Reagan, and 91.8% for Carter).
# 1. I believe the dividing line is Judge Bork's rejection despite being more than qualified. During his hearing you had Sen. (where'd I park the car) Kennedy saying that if Bork was confirmed women would have to kill their babies with hangers in allies. Since that nomination fight it has gotten progressively worse.
# 2. The current issue isn't over whether a traditional fillibuster could be conducted. Originally, fillibusters were used to continue the debate. The system has been abused over the last four years to create a requirement for a super-majority for confirmation. The Constitution was very explicit about what matters require greater than 50% vote (treaties, ammendments, etc) and presidential appointments were not included.
# 3. jim is just confused.
#4 LargeBill has a plethora of percentages and no real world view of the world.
Am I confused that Myers has never been a judge and has worked as a lobbyist his whole career? No. Am I confused that GOP, Inc. has sought to change long-standing Senate rules regarding this matter? No. Am I confused that, in general, there has been far more public outcry over Bush's nominees than Clinton's? No. So where is the confusion? Oh right, it is in the old Republican "Who cares about what actually happens, it is what we say that matters" bunch of BS. By your 100% percentage based logic Clinton got more screwed vis a vis Reagan (60% to 80% and Reagan had largely Democratic Senates) than Bush did vis a vis Clinton. Why don't you bitch about that for awhile?
1. I believe a great many judges were not judges before they were judges. Some were academics, like Posner and Easterbrook. Dennis Jacobs of the Second Circuit was a big-firm lawyer. Thurgood Marshall had not been a judge when he was tapped for the Second Circuit.
2. Actually, the Senate was Republican for the first 6 years of Reagan's term.
Big difference between being an academic and a shill for industries whose cases you will hear on an ongoing basis. My point would still be Bush's appointment rate is not terribly lower than Clinton's whose was drastically lower than Reagan's and Bush is appointing folks that clearly come with issues and baggage. The fact that GOP, Inc. wants to change the rules to fit their agenda makes it clear they simply want to railroad everyone and everything through. That simply is not how things go. If the roles were reversed you would be screaming bloody murder.
The founders did not create the Senate to be a popular representative institution like the House; but they did give the Senate extraordinary powers on certain important matters such as treaties, cabinet appointments, certain subcabinet appointments, ambassadors, and judges. Despite the doctrine of separation of powers, the Senate has an important role in the functions of the executive and judicial branches. The constituional role of the Senate was established at a time when Senators represented, not the population of the state through direct election, but the government of a state. Even with direct election the status of Senators is so exalted that they are immune from electoral accountability for 6 years. The independence of the judicial branch gives it enormous power. Circuit courts have enormous power because their decisions are often final and become law in every state comprising the circuit. For those reasons we ought to be leery of appointing such powerful judges with a purely partisan vote.
I updated my post (rewrote it, actually) to clean it up and to clear up some of the confusion from the numbers, and to also address some of your points here.
60.8% versus 73.6% would actually be a more accurate representation of the numbers. I forgot about Justice Gregory, who was one of Clinton's midnight nominations. His nomination was withdrawn by President Bush, but then he renominated him and he was confirmed. If we count him with Clinton's rather than with Bush's (which seems appropriate) then the numbers become Bush 60.8%, Clinton 73.6% (and as you pointed out, nearly half of Clinton's nominations who were not confirmed were nominated in his last Congress).