Response to Ed Whelan Regarding Judicial Nominations

by Doug Kendall, President & Founder, Constitutional Accountability Center

Over at Bench Memos, Ed Whelan has a post called Doug Kendall’s Illusion, taking on my argument, made in Slate, that Senate Republicans are using “unprecedented and dangerous” tactics to delay confirmation of President Obama’s judicial nominees. I’ll quickly recap my argument, and then respond to some of Whelan’s specific points.

It is simply a fact that it is taking a very long time for Obama’s nominees to get a vote on the Senate floor:

  • Gerard Lynch, the only Obama nominee confirmed to the circuit court to date, waited 96 days from his Judiciary Committee vote until his floor vote (he was approved 94-3).
  • Obama’s three confirmed district court nominees (counting Irene Berger, who was confirmed yesterday) have spent an average of 22 days waiting for a floor vote even though each was confirmed unanimously once the vote was held.
  • David Hamilton and Andre Davis were cleared out of the Senate Judiciary Committee on June 4th but have yet to be considered on the Senate floor, a waiting period of 146 days and counting.
  • Beverly Martin, an appeals court nominee from Georgia with the strong support of Georgia’s two Republican Senators, was voted out of the Judiciary Committee unanimously by voice vote on September 10th, 48 days ago.
  • Two additional Obama nominees – Charlene Honeywell and Joseph Greenaway – were reported out of committee 27 days ago. Four more – Edward Chen, Jacqueline Nguyen, Dolly Gee, and Richard Seeborg – have been pending now for 13 days, with no floor vote in sight.

So far, President Obama’s confirmed nominees have spent an average of 40 days waiting for a floor vote, an average that will rise dramatically as soon as either Hamilton or Davis gets a vote. By contrast, President Bush’s 68 confirmed nominees in the 2007 to 2008 period spent an average of less than 25 days awaiting floor action. Moreover, not a single Obama nominee has been moved to the floor in under two weeks, whereas nearly half (31) of those 68 confirmed Bush nominees moved this quickly (23 of those 31 moved in under one week, with 11 getting cleared by voice vote the day after being voted out of the Judiciary Committee).

Russell Wheeler, a scholar at the Brookings Institution, recently released this comprehensive examination of the Obama nomination and confirmation process and similarly notes the “delay in full Senate action on [Obama judicial] nominees,” calling this delay “striking.”

Whelan does not question any of these statistics. His main assertion rather is that Senate Democrats also demanded roll call votes on the Senate floor for Bush nominees. But even assuming that Whelan’s unnamed Senate source would hold up under cross examination, it is still the case that more than 40 percent (131 of 322) of all Bush’s confirmed nominees were passed by voice vote without any floor time wasted: something that has not happened yet for any Obama judicial nominee. And in many cases when Senate Democrats demanded a roll call vote during the Bush Administration, Senator Reid scheduled this vote very quickly: 10 Bush nominees got roll call votes on the Senate floor within a week of being voted on in Committee.

Demanding a roll call vote, moreover, is only one of several tactics that the minority party can use to delay confirmation of a judicial nominee. Anonymous holds, coupled with slow-walked negotiations over scheduling a floor vote, can be even more effective tactics for gumming up the confirmation works, and that appears to be at least part of what’s going on here with President Obama’s nominees.

In the end, as both Ed Whelan and I note in our posts, it is still early. It is certainly not too late for Senate Minority Leader McConnell to stand down and refrain from taking the war over the courts into the territory of nominees who are universally recognized as uncontroversial. But the evidence is more than sufficient to start raising an alarm about this now, particularly because, as I explain in Slate, this threatens the one part of the judicial confirmations process that is still working relatively well. If this concern proves to be an illusion – and Senator McConnell joins with Senator Reid in working out an agreement for securing timely confirmation votes for nominees who pass easily out of committee with bipartisan support — I will be happy to join Whelan in celebration. So far, that’s not the picture that I am seeing.

Additional Note:   The Bush 2006-2007 Renominations

One other point from Whelan’s post warrants a quick response. Whelan takes on my assertion in Slate that in 2007 to 2008, the “Senate voted on more than one-third of Bush’s confirmed nominees (26 of 68) less than three months after the president nominated them,” correctly noting that 15 of these nominees had actually been first nominated by President Bush in 2006 and were then renominated in 2007.

Let me say first that there is a kernel of truth in Whelan’s criticism here. The data that CAC put together on Bush’s 2007 – 2008 confirmations used the nomination and confirmation dates listed by the Federal Judicial Center. This information is accurate but incomplete in not noting previous nominations. If I’d looked behind these numbers, I would have realized that some of these nominees had been previously nominated and pointed this out in the Slate piece. Fair enough, but it’s Whelan who’s seeing illusions in asserting that these 15 confirmations “undercut” my argument.

First, recall that the Senate changed hands in November 2006. What’s really remarkable about these 15 confirmations in early 2007 is that they happened at all. New Judiciary Committee Chairman Leahy and new Majority Leader Reid could have easily used the turmoil that always accompanies a reorganization of the Senate to put all judicial confirmations on hold or at least to slow down the process. The fact that they made it a priority to keep the confirmation process moving quickly – to the consternation of many Democrats – supports the point I’m making.

Second, Whelan’s point only has force if Senate Democrats were responsible for the fact that these uncontroversial nominees were not confirmed in 2006, while Republicans still controlled the Senate. But there is no evidence that this was the case, and much evidence to the contrary. As Senator Leahy recounts in detail in a speech (available here, here, and here, all pdfs), he and Senator Specter worked together in a truly extraordinary election year effort to move a significant number of uncontroversial Bush nominees (roughly the same list of nominees that were cleared in early 2007) to the Senate floor in late 2006, only to have floor votes on these nominees blocked by Republicans, who, according to Leahy, wanted to have the number of unconfirmed Bush judicial nominations as high as possible to further their reelection campaigns.