GOP Stalling Judges??

CFJ Executive Director Curt Levey on the pace of judicial confirmations:

Speaking about judicial nominations yesterday, Senate Judiciary Chairman Pat Leahy complained that “In my 36 years here in the Senate, I’ve never seen anything to match the delays we’ve seen in the last year and a half.” Leahy shouldn’t believe everything he reads in the papers.

During the past two weeks, various newspaper articles have left one with the impression that Senate Republicans have been master obstructionists when it comes to President Obama’s judicial nominees. Last week, the Associated Press claimed that a “determined Republican stall campaign in the Senate has sidetracked so many of [Obama’s judicial nominees] that he has put fewer people on the bench than any president since Richard Nixon.” Yesterday, Roll Call reported that only “42 of Obama’s 89 judicial picks … have been confirmed, setting a pace Democrats describe as painfully slow.” And a Los Angeles Times article had a similar theme two weeks ago.

The impression given is very misleading. In fact, the confirmation rate for Obama’s judicial nominees is similar to that for George W. Bush’s nominees, as various commentators have aptly explained (see here, here, here and here). Moreover, those unhappy with the Obama confirmation rates should be pointing their fingers not at the GOP – which is virtually powerless to stop a concerted Democratic effort to confirm nominees – but at President Obama and the Democratic Senate leadership for making judicial nominations a low priority. The Washington Post conceded in an editorial last week that “Responsibility starts with the president. Judicial nominations have not been high on Mr. Obama's to-do list.”

Nonetheless, the President blames Republicans and conjures up imagined filibusters. Last Friday, Obama claimed:

“We’ve got judges who are pending. We’ve got people who are waiting to help us on critical issues like homeland security. And it’s very hard when you’ve got a determined minority in the Senate that insists on a 60-vote filibuster on every single person that we’re trying to confirm.”

The truth is that not a single Obama judicial nominee has been blocked or even meaningfully delayed by a filibuster (last fall, there was a symbolic filibuster attempt against 7th Circuit nominee David Hamilton despite no chance of success). That stands in sharp contrast to the Bush years, during which Senate Democrats broke with two centuries of history by repeatedly using the filibuster to defeat or indefinitely delay judicial nominees with majority support. At least ten of Bush’s appeals court nominees met this fate during the 108th Congress.

Payback hasn’t been an option for Republicans because for much of Obama’s presidency, Senate Republicans lacked even the 41 votes necessary to contemplate a filibuster. And even now, with just 41 GOP votes in the Senate, no nominee short of Attila the Hun could be filibustered with Republican votes alone, given that several GOP senators are opposed to the filibustering of judicial nominees.

With statistics flying back and forth, one simple but important point is often lost: Given the numbers in the Senate since Obama took office, Senate Democrats have had the ability to confirm any nominee with majority support simply by making it a high enough priority to spend floor time on debate. The Los Angeles Times explains:

"‘Republicans can't stop Reid from bringing things to a vote, but what they can do is make the majority leader pick his priorities,’ [Curt] Levey said. He was referring to the option of invoking cloture, which allows the majority to call a vote but at the price of ceding the Senate floor for a maximum of 30 hours of debate, at the expense of other legislation sought by the administration."

Faced with the facts, Senate Democrats are forced to concede that they haven’t made judicial nominations a priority and have no plans to do so. Some months ago, Judiciary Committee member Sheldon Whitehouse “said moving nominees just hasn't been a priority and there's no indication when that will change” (quoting National Law Journal). Now, even with Democrats facing their last chance to use a considerable Senate majority to confirm judges, Roll Call reports that “adding nominations to the list of [fall Senate] priorities is unlikely, sources say.”