Kendall Response to Whelan: Take 2

by Doug Kendall, President & Founder, Constitutional Accountability Center

After two rounds of debate with Ed Whelan on the slow pace of Obama judicial confirmations, there is not much left to add.  My main point, articulated here and here, is that Senator Minority Leader Mitch McConnell is treading into uncharted water in judicial obstruction by delaying floor votes even to judicial nominees that meet everyone’s definition of uncontroversial.  Whelan’s main point, expressed here and here, is that Democrats made some Bush nominees wait a very long time for before they were ultimately confirmed.  No use plowing that ground further, at least in my opinion.

One thing worth dwelling a little further upon, though, is a point Ben Wittes has made persuasively in publications including this Minnesota Law Journal article: it’s really important for folks working on judicial nominations issues to be careful and consistent in their use of statistics, which can easily be manipulated to support one side’s position or another.  It was for that reason that I conceded here that Ed had made a fair point about my use of nomination to confirmation numbers for 2007 to 2008 which were accurate, but incomplete and thus potentially misleading.

The same thing, though, can be said about Whelan’s proposed metric of time from first nomination to confirmation.  This is certainly a fair metric to use from the nominee’s perspective: all they really care about is how long the process lasts from start to finish (although they may have different expectations in terms of timing if they are nominated near the end of a particular Congress).  But this metric does not comport well with Senate rules:  technically, every bill and every judicial nomination pending at the end of a Congressional term is rejected and the clock starts anew when and if the President decides to resubmit their nomination.

More important, Whelan’s proposed metric is a really inaccurate, apples and oranges, way of comparing how two Congresses performed on the judicial nominations front, for this reason:  for renominated candidates, Whelan counts delays attributable to prior Congresses against the Congress that ultimately confirms the nominee even if, as is often the case when the Congress changes hands, the delay is in no way attributable to those in charge of the confirming Congress.  You cannot accurately compare the “time from first nomination to confirmation” performance of a Congress dealing with renominations with the “time from first nomination to confirmation” performance of a Congress with no renominations (as will happen almost every time there is a change in the White House) using Whelan’s figures.  (Thanks to Russell Wheeler for pointing this anomaly out).

This is not to say Whelan’s figures are meaningless.  They are meaningful for some purposes and not others, and they are not helpful in terms of setting a benchmark for the 111th Congress.  All one Congress can reasonably be judged upon is how it performs the task of evaluating the nominees that are sent to them by the President.  This is an important responsibility and Senate Republicans should take it task seriously.   They should oppose nominees they believe are unfit to serve and insist upon a full and fair confirmation process.  But if they use delay for delay’s sake and hold as pawns nominees even they believe to be unobjectionable, they will hurt the very judiciary the advice and consent process is designed to protect.