On yesterday’s “Meet the Press,” DNC Chairman Howard Dean made two misleading or outright false statement regarding judicial confirmations:
DEAN: “The Republicans wouldn't even give Harriet Miers a right to an up or down case. How dare they make a case for an up or down vote on Judge Alito.”
REALITY: “A … bogus argument among liberals is that Miers’s withdrawal makes it impossible to argue the nominee should be given an up-or-down vote. The GOP case is that judicial filibusters are wrong; that’s very different in principle from suggesting that no nominee should withdraw or be withdrawn to avoid humiliating defeat.” --Editorial, The Hill, 11/1/05.
DEAN: “They [Republicans] stonewalled hundreds of judicial appointees that Bill Clinton made. Hundreds of them that never came up. They wouldn't even take them up.”
REALITY: First, “hundreds” of Clinton nominees were not blocked. Even Senate Democrats generally refer to a number in the 60s. The inflated number comes from double and triple counting the same nominees held over from one Congress to the next.
Nonetheless, Clinton had 377 of his nominees confirmed—five short of the all-time record. Clinton’s eight-year appellate confirmation rate was 74%, in addition to getting two liberals confirmed to the Supreme Court. Many of the Clinton nominees who were delayed for long periods and not confirmed had problems with their home-state senators. For example, Helene White, Kathleen McRae Lewis, Jorge Rangel, Enrique Moreno, James Beatty and James Wynn all lacked support from one or both of their home-state senators and did not successfully negotiate these issues.
Of the nominees left dangling from Clinton’s two terms, most did not get through the Judiciary Committee due to a specific cause: late nomination, problems with home-state senators, incomplete paperwork, or they were impeachable, meaning they had behavioral issues in their pasts that rendered them unacceptable. In many of these latter cases, the Clinton White House privately agreed with the decision not to move forward.
When the Senate adjourned for the last time under President Clinton, there were 41 nominations
dangling and 67 judicial vacancies
. Overall, that is a good record.
By comparison, during the first President Bush’s single term, Democrats were more aggressive with committee procedures. After creating 85 new judgeships in 1990, the majority Democrats slowed down the confirmation process to purposely keep them open. After the Clarence Thomas confirmation fight, Democrats temporarily stopped the confirmation process entirely. Though a deal was reached to restart the process, the Democrats were able to keep many outstanding nominees off the bench, including Terry Boyle for the 4th Circuit, Frederica Moreno for the 11th Circuit, Lillian Bevier for the 4th Circuit, and John Roberts for the D.C. Circuit.
In all, at the end of the first President Bush’s term, 54 nominees
did not get confirmed and we were left with 97 judicial vacancies
If Clinton's two terms are added together, the number left dangling is around 60 — a figure Democrats cite regularly — or an average of about 30 per term, compared to 54 for the single term of the first President Bush.