Sparks will likely fly today during Robert Wilkins confirmation hearing to the prestigious D.C. Circuit Court of Appeals, or as President Obama calls it, “the second highest court in the country.” Adding fuel to the fire, when Wilkins was nominated in June President Obama claimed that Republicans were “cynically” engaging in “unprecedented” obstruction of judicial nominations. Further, Democrats keep threatening to change Senate rules, doing away with the filibuster for judicial nominations, if they don’t get their way.
Obama is hardly the first president to complain that his nominees are discriminated against. During the Clinton administration, Attorney General Janet Reno accused the Republican-controlled Senate of an “unprecedented slowdown” in confirming new federal judges. During George W. Bush’s first term in office, Republicans, such as Senator Orrin Hatch, complained of “inexcusable” delays.
So are Obama’s nominees facing unusually difficult confirmations? If you believe the numbers from the New York Times, USA Today, the Alliance for Justice, and the Congressional Research Service, Obama’s judicial nominees do appear to have been put upon.
Yet, their numbers have fundamental flaws, and Obama’s nominees have hardly received the worst treatment. These studies don’t look at what finally happens to nominees, only what happens at some arbitrary cut off date, such as last fall or at the end of a president’s first term. In reality, many of the longest confirmation battles involve nominations made during a president’s first term and not finished until some time during his second term. A president’s decision to make nominations late in a congressional cycle can also strongly influence the results.
Virtually all of the nominations made during Obama’s first term have now been decided. Measured in terms of confirmation rates, he has little to complain about. 85 percent of his Circuit Court nominees have been confirmed. Compare that to 78 percent under George H. W. Bush, 74 percent under Clinton, and 72 percent under George W. Bush. You have to go back to Reagan to find a president with Circuit Court nominees confirmed at a higher rate.
The same holds for Obama’s District Court nominations made during his first term. Both Reagan and Obama had confirmation rates of 96 percent, with the three interim presidents facing lower rates (for George H.W. Bush it was only 78 percent).
When Obama nominated Wilkins in June, the president spoke at length about Caitlin Halligan’s nomination to the same D.C. Circuit Court of Appeals. He bitterly complained that she faced “two and a half years of languishing in limbo” and claimed her delays were “all about [Republican] politics.” By comparison George W. Bush’s average nominee to that court took almost as long, 707 days, with Brett Kavanaugh’s nomination dragging on over a thousand days.
Yet, Halligan’s nomination well illustrates how Obama misrepresents his case. Halligan was not nominated until September 29, 2010, just five weeks until the midterm elections. For decades, nominations made after the end of May during an election year are never really considered that year. The president renomiated her at the beginning of the next Congress and a vote was held on December 6th, 2011, when she fell six votes short of breaking the filibuster.
For anyone else’s nomination, that would have been the end of the story. She had her vote, 433 days after her first nomination, and 335 days after her second one. Then President Obama renominated her again for the same position on September 19, 2012. Again, this was just before the presidential election, which once more guaranteed no immediate action would be taken.
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.