12/05/00

Judging the Senate

Let's review. Rafe said:

Is a Republican accusing a Democrat of blocking federal court appointments? Could this be possible?

And I replied, not only is it possible, but it's true - Democrats have been stalling judicial appointments, and Tom Daschle promised he would do so before President Bush sent a single name to the Senate, well before the Democrats controlled the chamber.

Rafe, after admitting that he hadn't done his homework, then conceded that the Democrats have been slow:

The Democrats on the Senate Judiciary Committee haven't had enough time to show how slow they can be in handling judicial nominations. They're not off to a particularly speedy start, and certainly, given their complaints about the vacancy crisis when they were in the minority and Clinton was President, they look hypocritical, but they're not out of line with historical precedent when it comes to processing nominations.

Actually, they are out of line with historical precedent. No prior Senate Majority Leader has gone on record vowing to block a President's judicial nominations. No Senate since before Kennedy has failed to confirm at least 80% of a President's nominees within his first two years. This Senate is simply not on pace. Rafe never addressed Tom Daschle's threats nor measured Senator Leahy by his own three-judges-a-week standard (incidentally, I don't think any Senate has ever confirmed three judges for each week it was in session.)

So to answer Rafe's original question, (and rebut one of his other blunders), yes, Republicans think Democrats have been blocking federal court appointments, on purpose, and it is not only possible that this is true, it's damn near certain. There are some signs, however, that the Democrats have begun to bend to public pressure, and begin to move more judges along. Even so, it is doubtful that they will get more than 30 of the 64 pending nominees confirmed by the end of the year.

To answer Rafe's second question, did Republicans block confirmation of Clinton's appointees? Note that he shifted the question in his rebuttal, where he addresses only delay rather than obstruction. I'll attempt to address both here.

Did Republican block Clinton's judicial nominees? There were some individuals who never made it through, but on the whole, Clinton enjoyed great success in getting his nominees passed. Returning to the Reagan numbers which caused Rafe such apoplexy, in eight years Reagan succeeded in getting 378 judges confirmed, six of those years facing a Republican Senate. Clinton, also facing six years of a Republican Senate, got 374 judges confirmed. So in absolute terms, Clinton raw numbers for confirmed judges were just as good as Reagan's, despite facing an opposing party's Senate for six years of his term. So Republican control of the Senate doesn't cause an obvious problem with absolute success rate.

How did Clinton's judges do as a percentage of nominees? Somewhat shy of his predecessors, but not much. In the last six years of Clinton's term, Republicans confirmed 71% of his judicial nominees - 245 in all. (Like Reagan and the current President Bush, Clinton faced many more vacancies immediately after his inauguration due to retirements from the bench.) By contrast, Reagan and Bush Sr. had approximately an 80% success rate versus opposing party Senates. All these numbers come from a February 2001 report of the impartial Congressional Research Service, as reported by Tom Jipping. In terms of percentage, Clinton did marginally worse in his success rate than most of his predecessors did, and we'll look into the reasons why in a moment.

To address the delay question, Rafe trots out a number of statistics about the average length of time Republicans took to complete the confirmation process for Clinton appointees - numbers which are not yet available for the current Democratic plurality in the Senate. It is impossible, as Rafe concedes, to know yet how the Republican deliberations in the 104th through the 106th Congresses will compare to the current crop. So instead, we must look at the numbers themselves, and then move to provide context to understand them.

It is worth noting that Rafe gets most of his numbers from People for the American Way, whose ideological bias is well known, and from the more obscure Constitution Project's Courts Initiative, whose mission includes protecting judicial independence, liberal code-speak for advocating liberal judicial activism. This group is also linked, apparently financially, to the Century Foundation, which embraces a long laundry list of liberal causes.

Regardless of the source, let's use Rafe's numbers for purposes of discussion. Unfortunately, the Courts Initiative Report does not include numbers beyond 1998, so we're not really comparing apples to apples, but with that caveat, I'll proceed. Rafe is techincally correct in stating that the 104th and 105th Congresses took longer than their predecessors, on average, to confirm those 374 judges - 114 and 171 days respectively per confirmed judge, compared to 120 days per judge under Reagan and 99 days per judge under Bush when facing a Democratic Senate. (Averages for Clinton nominees were skewed by a handful of extreme cases.) The average time for rejected judges under Reagan's Democratic Senate was 241 days per judge, and the average under Bush's Democratic Senate was 190 days per judge, compared to rejection times under Clinton's Republican Senate of 259 and 326 days per judge in the 105th and 106th Congresses.

Liberal activists are eager to do exactly what Rafe has done - cite those numbers as proof of Republican's unwillingness to confirm Clinton's judges. But Rafe's eagerness (and predetermination) to blame the difference on Republicans doesn't make him right, and there are at least two reasons why.

One of these is crystal clear - no matter which party holds the Senate, the judicial nomination process has slowed down dramatically since 1987. At no time since 1987 has the number of days from nomination to final action dropped below 78, as opposed to the pre-1987 time frames which exceeded 45 days only once, in Carter's last two years. Most of that should be attributed to cross-party politics, but not all.

Many commentators, including those who signed the Courts Initiative Report, believe that the judicial nomination process was badly damaged by the Democrats' 1987 examination of Robert Bork, the first ideological lynching by the Senate since perhaps the 19th Century. These scholars argue that the unprecedented scrutiny of a candidate's past and prospective votes on narrow issues - not necessarily reflective of judicial temperament - undermine the process by introducing delay and electioneering where none belong. The Senate has confirmed all but one Supreme Court nominee since then with little fuss; reliable liberals Ginsburg and Breyer passed the Republican Senate with not a whimper compared to the battle Democrats pitched against Clarence Thomas. But ideological battles have deeply affected circuit and district court nominees in every Senate since Biden took aim at Bork.

Even the ideological battles don't adequately explain the trouble President Clinton has been having. In their haste to blame Republicans, the liberals overlook the single common factor in the most heavily delay prone nominations - President Clinton himself. Liberals imagine that Republicans cause liberals woes, when it is clear from the historical record that President Clinton had an awful time picking and fighting for nominees no matter which party controlled the Senate. Remember that Janet Reno was Clinton's third pick for Attorney General; nominees Zoe Baird and Kimba Wood carried too much baggage to pass the Democratic Senate. That same Senate didn't look too favorably upon Clinton's judicial nominations, either.

A President's nominations in the first two years generally receive great deference from the Senate, even for lifetime judicial positions. Every President since JFK has enjoyed 90% or better confirmation success in the first two years, with the sole exception of Gerald Ford - whose first two years were his last. Clinton, however, barely cleared that hurdle, scoring the second least of all Presidents since JFK for his first two years. Even Presidents facing opposing parties in the Senate, like Nixon and Bush, won about 92% of their judicial nominations. Presidents Kennedy, Johnson, and Reagan, whose parties controlled the Senate, enjoyed respective success rates of 98.9%, 96.7% and 97.8% for the two years after their elections. Clinton was a dismal failure by comparison.

But it gets worse for Clinton. Look to Table 4 of the Courts Initiative Report. Not only did the Democrats reject a higher percentage of Clinton's first nominations, it also took far longer to act on them in general. Reagan's Republican Senate took 33 days to confirm and 10 to reject, and Carter's Democratic Senate took 38 days to confirm and 35 to reject. But Clinton faced the 103rd Senate, controlled by Democrats, which took an extraordinary 81 days on average to confirm his nominations, and a whopping 102 days to reject them. Where was Senator Leahy's three-judges-a-week standard then?

It is also true that the Senate, Democrat or Republican, is less likely to confirm nominees of the other party's President, a factor which becomes much more potent towards the end of a term. The Reagan and Bush presidencies show this in recent times. Under Clinton, that factor was multiplied further because, for whatever reason, Bill Clinton was unusually inept at finding judicial nominees that appealed to either Democrats or Republicans. Senators of both parties responded by balking at his marginal nominees, taking longer to scrutinize their records and rejecting a higher percentage. Clinton's nominees sat in limbo longer than those of his predecessors, regardless of which party was at the helm.

The original question was one of laying blame for the delay in the nominations process under the current President Bush and his predecessor. Liberals in the Senate and elsewhere point their finger at Republicans, conservatives fault Democrats for not living up to their own standards. The data reveal a much more interesting answer: Republicans watched what the Democrats did in 1987 and have adopted (and adapted) those partisan tactics; Democrats invented the Borking process for judicial nominees and now they control the confirmation process despite swearing, just months ago, to shut it down; and Clinton couldn't even satisfy his own party with his nominations, let alone the Republicans. This term, a judicial logjam in the Democratic Senate seems inevitable.

Notes:

Note 1: Incidentally, Rafe also claimed in his original piece, "The fact that the federal bench has so many empty seats falls squarely at the feet of the Republicans who refused to consider Clinton's appointments by either delaying their consideration or rejecting the appointees before they came to a vote."

He said that before he did his homework, but even then, he completely got the matter wrong. There are now over 100 judicial vanacies; a large portion of those arose after the Inauguration of President Bush. Rafe was completely wrong when he said there were 80 vacancies at the end of the 106th Congress, becuase he misread the chart. The Senate comfirmed 77 judicial nominees during the 106th Congress. One can only hope the 107th moves as quickly. - Back -

Note 2: In 1997, PFAW railed against ideological litmus tests for judges and the speed of the confirmation process. Now that the White House and Senate have changed hands and judicial vacancies are sky-high, PFAW has done a little sleight of hand itself by demanding the imposition of litmus tests and advocating stall tactics in the nomination process, both generally:

While it is true that widespread judicial vacancies can slow access to justice, vacancies are not the most grave and immediate crisis in the federal judiciary. It is, rather, the potential domination of the federal appeals courts and the U.S. Supreme Court by judges eager to overturn scores of Supreme Court decisions and decades of precedent affecting civil rights and civil liberties, reproductive choice, environmental protection, and many other areas of law.

and for specific appointees. - Back -