Federal Court Nominees: Funny Math, a Disinterested Left, and the Most Important Task for Post-Election Republicans

With Congress on recess until after the November elections, much of news in the political world has focused on campaigning, margin of error polling, controversial stump statements, off-the-record / now on-the-record statements, and run-of-the-mill election run-up commentary.  Noticeably absent from the chatter of election season with Congress on adjournment is talk of “recess appointments” – those made when the Senate is adjourned for more than three days – that usually rule the news-day during times such as these.

In a last-minute deal brokered by Senate Leaders before adjournment, Majority Leader Reid agreed to convene the Senate in pro forma session Tuesdays and Fridays from Oct. 1 to Oct. 29 as well as on Nov. 1, Nov. 4,  Nov. 8, Nov. 10 and Nov. 12.  This effectively evaded the procedural rule which would have allowed the President to take “temporary” action on nominees he has sent to the Senate for approval.

From The Hill:  Obama had more than 110 executive- and judicial-branch nominees pending on the Senate’s executive calendar as of Wednesday afternoon.

The Senate approved 54 of Obama’s nominees late Wednesday evening, including a dozen ambassadors, 11 U.S. Marshals and six U.S. attorneys.

The Senate confirmed Sarah Raskin to serve as a member and Janel Yellen to serve as a member and chair of the Board of Governors for the Federal Reserve. The chamber also confirmed Maria Raffinan as an associate judge of the D.C. Superior Court, the only judicial nominee on the list.

Republican Leader Mitch McConnell (R-Ky.) had threatened to send Obama’s most controversial nominees back to the president if Democrats did not agree to schedule pro-forma sessions, according to a senior GOP aide.

So what does any of this mean?  We rarely hear of “recess appointments” in the first place – at least not until months later when said appointments turn out to be “controversial” – as in the President slipped in an extremist beneath the radar and we’re all left wondering how a nutjob managed to skirt the confirmation process.

The matter of recess appointments, or rather the importance of their absence during this pre-election season, is profoundly important for a handful of reasons – most notably, the change in composition of the Senate that most believe is coming November 3rd.  That said, one should not assume that Harry Reid would not attempt to push through Obama nominees for various positions during the lame duck session of Congress post-November 2nd.  I have no doubt he will.  He may not succeed, but try he will.  What it means however, is that Republicans in the Senate only have to fight the good fight for a few unfortunate months until new Republicans can take their seats.

In the absence of recess appointments, and because “news” has been hard to come by, there has been a fair amount of chatter regarding the lack of “confirmed” nominees sent forth by the Obama administration during his time in office.  Many on the Left have and continue to make the argument that Republicans have used procedural tactics to slow the process.  They also make the argument that in doing so, GOP Senators have caused irreparable harm to the nation’s judiciary as seats have been left vacant creating backlog that could potentially impact the administration of timely justice.

The Left fears Republican tactics will lead to an empty judiciary -From Slate

The prospect of a federal bench with nearly one out of every eight judicial seats vacant should scare the pants off every American. Yet few Americans are as worked up about it as those of us who think and worry about it a lot. Our argument was already a tough sell before the threat of global terrorism and a collapsed economy ate up every moment of the national political conversation. Now a 10 percent judicial vacancy rate seems like a Code Beige emergency in a Code Red world.

Part of the problem is politics: It has often seemed that the only people screaming for speedy judicial confirmations are panicked because it’s their judges being blocked. The party not currently in control of the White House and Senate often sees less crisis than opportunity in a dwindling bench. Moreover, when the entire judicial selection process has been as fiercely politicized as it is has become lately, most Americans may suspect that empty benches might be better for democracy than full ones. But judicial vacancies are disastrous for Americans, all Americans, and not merely for partisan reasons, but also for practical ones. That’s why in a recent speech, Justice Anthony Kennedy warned: “[I]t’s important for the public to understand that the excellence of the federal judiciary is at risk. If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled.”

Politico says There They Go Again

There they go again. Republican senators have resumed the obstructionist tactics they used against President Bill Clinton to keep the federal judiciary under right-wing control. So far, they have succeeded.

When President Barack Obama took office, 59.5 percent of all federal judges were Republican appointees, according to a report just issued by the Alliance for Justice. Some 20 months later, little has changed.

Despite the Democrats’ large majority, so far, only 43 out of 87 Obama nominees have been confirmed. That leaves 104 out of 854 federal judgeships vacant — 20 appellate court slots and 84 district court slots, with 48 classified as “judicial emergencies” because of overloaded dockets.

Things were different under Republican presidents. By Sept. 27, 2002, George W. Bush had 72 nominees confirmed, even though Democrats controlled the Senate during most of this period and despite the disruptions caused by Sept. 11 and the anthrax scare. At a comparable point in George H.W. Bush’s presidency, and also facing a Democratic Senate, he had 59 nominees confirmed.

In fairness, Obama bears some blame. He has made only 87 nominations — far fewer than either George W. Bush, who sent up 122 nominees after 17 months, or Clinton, who nominated 139. But Obama’s percentage of confirmed nominees is much smaller than that of either of his two predecessors: only 43 confirmations, amounting to just 48 percent, compared with 62 percent for Bush and 64 percent for Clinton.

This is not for lack of time — a result of the busy legislative agenda, for example, or the two Supreme Court nominations. It’s about politics.

But then offered this piece of contradictory nonsense.

George H.W. Bush’s administration continued Reagan’s court effort. When Bush left office in 1992, 80 percent of all federal judges and 75 percent of the appellate bench were GOP appointees. The emphasis over that 12 years was on wealthy white males; the number of African-Americans on federal courts dropped — to 43 in 1992 from 49 in 1981.

This tilt to the right did not seem to bother Clinton. Soon after taking office, he announced he had no interest in ideology — only in intellect, judicial temperament and diversity. With a large Democratic Senate majority during his first two years, and a temporarily cooperative Republican Senate with whom Clinton cleared every nomination in his third year, he got quite a few judges through, including many minorities and women.

Oh right – you meant the second term of Clinton’s Presidency

But in a sign of things to come, in 1996 only 17 district judges and no appellate judges were confirmed — the lowest number of judicial confirmations in an election year in recent history. Twenty-seven nominees were left hanging.

Many other Clinton picks got the same treatment. After Clinton’s reelection, the GOP-controlled Senate went into obstructionist mode. Judicial emergencies soared as the shrinking number of active judges was overwhelmed by an increasing load of drug and immigration cases.

A Little Fact-Checking From Brookings should offer some perspective….

The New York Times editorialized last week that “at the comparable point in the Bush presidency, the Senate had confirmed 61.4 percent of Mr. Bush’s nominees. For Mr. Obama, it’s under 50 percent.” That kind of comparison, typical of many by those on the left and right, has two problems:

  • First, it lumps district and court of appeals nominees together, obscuring differences in the treatment of nominees for different judicial posts.
  • Second, it fails to account for the time the Senate needs to prepare for hearings and move nominees to floor votes. To say that President Obama’s confirmation rate today is lower than President Bush’s obscures the fact that some nominees, certainly those sent up in July of an election year, would be unlikely to get confirmed by mid-September in any circumstance.

As of September 26—Obama has made fewer nominees than Bush did and has taken longer to make them. His circuit nominees have received more hearings, more quickly, than did Bush’s circuit nominees. His appointees have waited longer after hearings for floor votes. His confirmation rate for pre-late May circuit nominees is slightly higher than Bush’s and his confirmation rate for similar district judges is noticeably lower—in some ways the most intriguing development of all.

I.  Judicial vacancies have proliferated more under Obama than Bush.

President Bush inherited 54 district vacancies and 27 circuit vacancies. As of September 26, 2002, there were 47 and 26; the Senate confirmed enough judges to stay slightly ahead of the vacancies created since inauguration day.

President Obama inherited 41 district and 13 circuit vacancies, but, unlike in 2001-02, vacancies have increased considerably. District vacancies have more than doubled, to 84, and circuit vacancies have increased by almost half, to 19.

There are various reasons for the spike in vacancies. One of them is not that they are all so recent as to provide insufficient time to send names to the Senate. Of the 52 district vacancies for which no nominees are pending, 21 have been vacant for over a year, as have four of the eight circuit vacancies that have no nominees.

Looked at another way, by September 26, 2002, Bush had made 94 district and 31 circuit nominations. Obama has made 63 and 22, respectively. The average days from vacancy creation or announcement (or inauguration day for existing vacancies) is about the same for district nominations—277 for Bush, 325 for Obama—a 48 day difference likely attributable largely to Obama’s having moved the American Bar Association Standing Committee on the Federal Judiciary’s nominee investigations back into the prenomination phase. It evidently takes the committee about 30-40 days to complete most investigations. Under Bush, the committee began its investigation once a nomination went to the Senate.

But Obama has taken much longer to make circuit nominations, 241 average days versus 146 for Bush, a 95 day difference that’s hard to attribute solely to the ABA investigations.

Responsibility for the surge in vacancies hardly rests entirely with the administration. For one thing, the pace of nominations has clearly picked up: 12 circuit nominees in 2009, 10 by late July 2010; 21 district nominees in 2009, 42 in 2010. (Likewise, only about a third of Bush district nominations came in 2001, although all but three of his circuit nominations did, and all were there by June 26, 2002.)

The reality in the Senate has been quick hearings for Obama nominees, but that has not produced higher confirmation rates than for Bush nominees or shorter times from nomination to floor votes.

II.  Obama circuit nominees (but not district nominees) have gotten more hearings, more quickly than did Bush nominees.

For Bush’s 83 district nominees in the Senate by July 26, 2002, 92 percent had hearings, compared to 84 percent for Obama’s 62 similarly situated nominees—but the Kagan Supreme Court nomination could explain part of that. Average days, nomination to hearings, were 98 for Bush and 51 for Obama, a 47-day difference likely explained by the Senate’s no longer having to wait for the ABA’s post-nomination investigation.

For circuit nominees, the picture is different. As of this date, 61 percent of Bush’s 31 pre-July 26 nominees had hearings, and they waited an average of 240 days for them. By contrast, 91 percent of Obama’s 21 similarly situated nominees have had hearings, waiting 62 days for them—a difference that can’t be explained by the shift in timing of the ABA investigations.

Obama pre-May 26 circuit nominees have slightly higher confirmation rates that Bush circuit nominees, but the much larger number of district nominees have fared worse.

III.  The problems that have beset circuit nominees for two decades are starting to affect district judge nominees.

On September 26, 2002, Bush had seen confirmations of 43 percent of his 30 pre-May 26 circuit nominees, with 236 days on average from nomination to confirmation. Obama’s circuit confirmation rate is higher for his 18 like-situated nominees—61 percent, although average days from nomination to confirmation, 232, was virtually the same as for Bush.

But on September 26, 2002, Bush had seen 90 percent of his 71 pre May-26 district nominees confirmed (average days, 134), but only 58 percent of Obama’s 52 pre-May 26 district nominees have been confirmed (average days: 134).

Even though Obama’s nominees are getting to hearings faster, those who get floor votes wait much longer for them, neutralizing any effect of a Senate majority’s willingness, in unified government, to try to run nominees quickly through the hearing process. Although Bush’s district appointees moved from hearings to floor votes in 36 days and his circuit nominees in 48 days, Obama’s district appointees have waited 92 and 183 days, respectively. That’s due to a mixture of Republican holds, or threats of holds, and the Senate leadership’s reluctance to devote scarce floor time to breaking those holds.

IV.  How might the numbers look when the 111th adjourns sine die?

The 107th Congress eventually confirmed slightly over half of Bush’s circuit nominees—52 percent. Obama will have the same result if the Senate receives no more circuit nominees and confirms no more of those there now—11 of 22. But confirmations are possible for at least one or two of his circuit nominees who have bi-partisan support—Utah’s Scott Matheson, for example—which would up the percentage closer to what one might expect in a situation of unified rather than divided government.

But the 111th won’t do as well as the 107th as to district judges. Until now, high percentages of district nominees have almost always made it through. Consider this: of Bush’s district nominations submitted by July 1, 2002, the Senate confirmed 98 percent (all but two, one of whom had withdrawn after an “unqualified” ABA rating).

For Obama to match that 98 percent rate, the Senate will need to confirm 24 more district judges between now and final adjournment—highly doubtful, and producing an unexpected comparison between confirmations under divided and unified government.

What accounts for this downturn in the percentage of district confirmations? Republicans claim that Obama has nominated mainly would-be “activist” judges, but that’s hard to square with the lack of enthusiasm that the Democratic base has shown for most Obama nominees. The more plausible explanation is that political polarization is claiming one more of the unwritten rules that have traditionally sustained the federal judiciary—routine, bi-partisan approval of professionally competent district nominees whom both home-state senators endorse.

So what is to be made of any of this?  Even Brookings in the last paragraph there said political polarization is part of the problem.  Is it activist judges being appointed to the Judiciary, or are Republicans really playing politics with the federal bench?

I think the most likely solution is a third option.  While I would certainly give a fair amount of credence to both of the afore-mentioned arguments, I am inclined to believe the real story rests in the commitment (or lack thereof) from the Obama administration and the Left to getting these vacancies filled in the first place.  I believe the real problem is simply reflective of a Left-Right divide regarding both the Rule of Law and the proper roles of government.

I see the matter as merely the natural state of things given the fundamental approaches to government taken by both national parties, their leadership, and the respective ideologies that guide them.  Dems, and their supporters on the Left, believe that government action is the first solution to all that ails us as a nation.  They believe more legislation; more regulation; and more government intervention is the key to solving every problem presented to the American People.  From time to time, they attempt to rely upon the Judiciary to handle politically volatile issues such as abortion, gay marriage, or Don’t Ask Don’t Tell; but for the most part, they believe there is essentially no limit to what the federal government can do should it be “necessary and proper.”

Those on the Right; however, see the Constitution as the beginning and end to any and all conversations regarding government action.  By “those on the Right” I do not mean “All Republicans” because we unfortunately know that is simply not always the case.  But to those on the Right, preservation of the America established by our Founders can only be achieved by first preserving the Constitution.  Such an approach to governance and the Rule of Law inevitably leads those on the Right to take a higher interest in those individuals nominated for our federal judiciary.

I am often asked why I am a Republican and not a Democrat or an independent given my frustrations with the Party as a whole.  The answer that I give every time without pause is this – Republicans are the only ones out there that even acknowledge the Constitution when they formulate and speak to policy or potential action.  They may get it wrong from time to time, but at least they’re willing to pay lip service to the proper starting point.  It is that commitment – real or spoken to – that leads Republicans to take a closer look at nominees.  While they are often criticized heavily for doing so, it is among the most noble and important endeavors that our elected officials take up during their time in office.

The impact that one activist judge can have on the federal judiciary is often understated.  Many are of the mistaken belief that a District Court judge in the middle of nowhere can have no bearing on jurisprudence outside jurisdiction - let alone nationally.  They see the Supreme Court as the final arbiter of any and all, and fail to see that the process is not as simple as they were told it was in elementary school – undoubtedly by those same Lefty Social Studies teachers that also taught them the Constitution was a “ever-changing document.”

The reality is that lower court judges do have an impact on the judicial system as a whole.  Radical judges produce inconsistent jurisprudence and confusion in and among the federal Circuit Courts.  A series of radical appointments to the District Courts inevitably leads to a series of promotions to Circuit Courts which in turn lead to inconsistent and confusing decisions past on to the Supreme Court.  Conflicting case law from District to District and Circuit to Circuit creates backlog for the nation’s Highest Court and unsettled law becomes the norm rather than the exception.  Blind Justice and Equal Protection under the law gives way to biased interpretation and regionally conflicting rulings which lead to instability until the Supreme Court can act to bring clarity as the last resort.

The truth is that those on the Left, and Democrats that serve them, see the Judiciary and the nomination process as a great second line of defense.  They see it as merely a way to buck the system if you will – throw a few loose cannons out there to stir the pot and murky the water from time to time on controversial issues.  They take an elementary approach from top to bottom.  They make great noise and pay close attention when a nominee is put up for the Nation’s Highest Court because they know a new Justice means instant rewards for activist ideologues.  They have no respect for the Rule of Law and the Judiciary as a whole.  They worry only about the appointments to the Supreme Court and care not for the courts that produce the heinous results that come before it – save for attempting to throw a few wrenches in the system along the way.

Such a dichotomy and contrast in approach to the federal judiciary naturally lends itself to two very different outcomes when Republicans serve as the opposing party to nominees rather than Democrats.  Dems worry only about the confirmation to the Supreme Court and those on the Right must stand as the last line of protection for the Constitution and what it stands for.  That goal – that objective knows no level of judiciary; it recognizes no distinction in venue; and it serves no political end.  The only result it hopes to produce is consistent and accurate interpretation of the Document which formed this Union.

As Republicans move toward a more desirable composition in the Senate, they must not lose sight of the noble duty they have and will be sent there to serve.  They must legislate and lead from the Right.  They must continue to oppose this President’s nominations – not because it is politically advantageous, but because it is the task they swear an oath to perform – to Preserve and Protect the Constitution of the United States of America.

Funny math; comparisons to Clinton, Bush I, or Bush II be-damned… activists judges sent forth by this president must be opposed at all costs by those on the Right.  Backlash and the threat of being painted as partisan is a small price to pay for the objective that would serve.  After all, the Left, the Dems, and the MSM rarely pay attention in the first place.  This president has shown a predilection for associating with and appointing radicals to every level of his government.  Why would anyone be so foolish as to assume that the Judiciary is any different?  It is within the power of this and every President to nominate individuals to the nation’s courts, but it is not the duty of every Senator to give consent to any nominee who won’t put the Constitution above all else.

Block-em all!!

Hat Tip Frugal Cafe

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