The full Senate finally turned down Halligan a second time on March 6th this year. Technically, her confirmation took 889 days, but there was no formal nomination before the Senate for 288 of those days. Obama’s renominating her right before elections added over an additional 200-day delay. Subtracting Obama’s own impact on the delays, his worst case confirmation lasted only a little more than half as long as the average D.C. Circuit Court judge nominated by Bush.
Halligan’s radical views made her a difficult sell to even some Democrats. She advocated holding gun makers liable for any misuse of their guns and believed it was constitutional for race to be used as a factor in college admissions. Given such views, it is surprising that the Senate handled her nomination as quickly as it did.
But Halligan wasn’t the only one facing nominations late in a congressional term. During Obama’s first two years in office, five of Obama’s twenty-five nominees for the circuit court were announced only five months before the November 2010 mid-term elections. In contrast, George W. Bush was much quicker when he came into office, with only one out of thirty-two circuit court nominations announced that close to his first mid-term election.
There are other factors that explain the delays with Obama’s nominees. The Senate Judiciary Committee was busy with two consecutive Supreme Court nominations for Elena Kagan and Sonia Sotomayor. But that situation is not unprecedented. A similar delay occurred for George W. Bush’s Circuit Court confirmations during the 109th Congress (2005-2006), when John Roberts and Samuel Alito faced hearings.
What will happen to Wilkin? It is hard to predict. He was initially confirmed to the District Court in 2010, as Obama likes to emphasize, “without opposition.” But, as a judge, he has since made controversial decisions — recently striking down Texas’ voter photo ID law and upholding aggregate campaign finance donation limits.
President Obama’s exaggerations aside, there is a problem with judicial confirmation. There has been a clear trend towards more confrontational confirmations since the 1970s. But my new book, “Dumbing Down the Courts,” shows there is a simple explanation for that: as the number of cases before the federal judiciary has exploded with the rise of federal regulations in everything from the environment to employment and as judges have begun to behave more like legislators, what is at stake with each judicial nomination has increased.
If President Obama really longs for the good old days when nominations got relatively little notice, return the federal government back to where it used to be.
John Lott is the author of the new book Dumbing Down the Courts: How Politics Keeps the Smartest Judges off the Bench. He is also the President of the Crime Prevention Research Center.