Federal Courts and Nominations

Unprecedented & Unjustifiable Delays: A Response to Ed Whelan

We recently noticed that as part of a response to a judicial nominations piece by Dahlia Lithwick and Carl Tobias, Ed Whelan took a quick swing at numbers CAC has been using about a stunning increase in Senate floor confirmation vote wait times for judicial nominees, which show that President Obama’s nominees are facing unprecedented obstruction tactics in the United States Senate.  Whelan does not say that our Senate floor wait time numbers are wrong, nor could he.  He argues, rather, that wait times from nomination to confirmation are more relevant.  A couple of responses are in order.

First, we have been highlighting Senate floor wait times –- the time a nominee waits between clearing the Judiciary Committee and getting an up-or-down vote on the Senate floor — because these waits have shot up dramatically from historic figures and they isolate precisely what Senate Republicans are doing that is unprecedented.  Even in recent decades, as judicial confirmation wars have heated up, most judicial nominees have moved quickly from a favorable vote out of the Senate Judiciary Committee to a vote on the Senate floor.  That’s not happening with President Obama’s nominees because Senate Minority Leader Mitch McConnell has used a combination of filibuster threats and secret holds to prevent floor votes even on uncontroversial judicial nominees.  By this point in his presidency, George W. Bush had 78 judges confirmed. Only 41 Obama judicial nominees are now on the bench.   Those 78 Bush nominees waited an average of 22 days to be confirmed after being favorably reported out of the Senate Judiciary Committee.  President Obama’s 41 confirmed judges have waited more than four times that long, an average of 90 days after their Judiciary Committee vote.

Whelan’s right, of course, that a big issue for nominees — perhaps the biggest issue — is the total time between nomination and confirmation, and he’s right that the numbers here are more similar.   By our calculation, the 41 Obama judicial nominees who have been confirmed thus far in his term have waited an average of 162 days between their nomination and confirmation dates.  For judges confirmed by the same point in Bush’s term (through September 2002), the average was 150 days.  (Whelan breaks these numbers down into separate averages for circuit court nominees and district court nominees, showing that the Bush and Obama averages are even closer when analyzed in this fashion. The reason that the overall average (circuit plus district courts) for Obama is higher than  for Bush is that a greater percentage of Obama’s confirmed nominees have been for circuit seats and the average confirmation time for an appellate court nominee is higher.)

But there has to be a difference drawn between justifiable and unjustifiable delays.   President Bush nominated a huge number of judges in a very short period of time between late 2001 and early 2002.  For example, on a single day — January 23, 2002 — Bush nominated 24 judges.  Such a rush of nominees is always going to cause a backlog in the Senate Judiciary Committee and slow down the confirmation process as the Committee does its work.  There was a perfectly reasonable explanation, in other words, for the fact that it took the Senate an average of five months to confirm Bush judges.  There is only one unjustifiable reason – unprecedented obstruction by Senate Republicans of floor votes for uncontroversial nominees – for Obama nominees to be waiting, on average, even longer.

From the nominee’s perspective, also, uncertainty matters.  For most Bush nominees during the 2001 to 2002 period, the wait for a Committee hearing was somewhat long, but predictable.  For Obama nominees stuck on the Senate floor, the wait is both long and completely unpredictable: there is no way of knowing when or if a floor vote will ever come on their confirmation.  So the lives of these nominees – most of whom are completely without controversy –are put on hold, while a vacancy crisis on the federal judiciary gets worse.

Whelan will continue to argue that there is nothing new going on here, but he’s wrong.  For the first time in history, uncontroversial nominees have been swept into the judicial confirmation wars.  As Russell Wheeler, one of the sources Whelan relies upon, put it recently, “[w]e’ve come to accept confrontation over the Supreme Court and the courts of appeals, but now it’s seeping down to the district court.”   Whelan clearly thinks that’s just fine.  We don’t.

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