Behold the Left's Manufactured Hysteria About GOP Obstruction of Judicial Nominees


Behold the Left's Manufactured Hysteria About GOP Obstruction of Judicial Nominees

Dec 20th, 2016 3 min read
Hans A. von Spakovsky

Election Law Reform Initiative and Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.

Liberal hysteria is nothing new. But over the last six months, the Left’s manufactured outrage over the Senate’s refusal to confirm Merrick Garland to the Supreme Court has hit new heights. Now they’re making the false claim that Republicans have deliberately obstructed all Obama-nominated judges, even down to the federal district court level.

Marge Baker, executive vice president of the liberal People for the American Way, described the supposed lack of confirmations as “absolutely absurd” and “qualitatively different from anything that has gone before.”

The judicial confirmation numbers show that Obama is almost evenly matched with George W. Bush.

Kyle Barry of the liberal Alliance for Justice, told Mother Jones that" “we’re in nearly unprecedented ground here … The pace has been so historically bad, we’ve been seeing what amounts to outright obstruction.”

Sen. Elizabeth Warren, D-Mass. (F, 18%) put out an entire paper on the issue, claiming that for the past seven years Republicans have “waged an unrelenting campaign to keep key positions throughout government empty as long as possible.” She even went so far as to argue that this alleged obstructionism “has created a breeding ground for new and dangerous Republican extremism” that “encourage[s] even more outrageous behavior from other Republican leaders” and “is on display in the 2016 election.” More specifically, she claimed that Republicans “have consistently blocked President Obama’s judicial nominees.”

As is often the case with charges levelled by today’s progressive activists, the facts of the matter are at odds with their sensational claims.

Liberals have focused on the number of current vacancies and the need for them to be filled yesterday, but they’ve ignored the total number of confirmations made by Obama and past presidents. President Barack Obama has actually had almost the same number of district, appellate, and Supreme Court judges confirmed as George W. Bush did during his entire eight years in office. Indeed, Obama is one up on Bush, 325 confirmations to 324.

It is true that both Obama and his predecessor trail Presidents Bill Clinton and Ronald Reagan, who each had a total of 372 and 377 judges confirmed, respectively. But those inside the Washington political bubble who track the judicial nomination process know that one of the main reasons that Obama’s confirmation numbers are not higher is the sluggishness of his own White House.

The federal courts (including the U.S. Court of International Trade) currently have 46 vacancies on which President Obama has failed to act; i.e., there is no nomination for any individual pending before the U.S. Senate for senators to even consider in their constitutional “advice and consent” role. It is a bit much to try and blame that on Republican obstructionism.

When it comes to the U.S. Supreme Court, Republicans followed the long-established Senate precedent of not confirming a nominee for a vacancy that occurs in the final year of a president’s term.

But before running up against that 12-month mark, President Obama got two of his nominees confirmed to the nation’s highest court — just as George W. Bush and Bill Clinton did. In fact, Mr. Obama’s judicial nominees now occupy 38.19 percent of all federal judgeships —  an almost identical percentage to that attained by George W. Bush (38.21 percent) by the end of his presidency.

Clearly the narrative of “unprecedented” Republican judicial obstructionism being infused into the mainstream media by progressives is false. The judicial confirmation numbers show that Obama is almost evenly matched with George W. Bush. It is, once again, a bit much to claim that Republicans have been obstructionist and somehow far worse in their behavior than Democrats during the Bush administration. The most one could say is that Republicans have been just as obstructionist as Democrats.

Moreover, President Obama has nominated some pretty sketchy characters — including far-left activists like Caitlin Halligan and Goodwin Liu. Senators should be applauded for opposing those picks.

The actual slowdown in confirmations this year is also a good thing. With a few notable exceptions, Mr. Obama’s appointments have been some of the most ideologically radical judges to ever sit on the federal bench.

The Nov. 8 election handed the reins of government to a more conservative, constitutionally-minded administration and terminated whatever mandate Mr. Obama may have had.

The last thing the American people need now is the confirmation to life-time appointments of any more federal judges who will further damage the Constitution and the rule of law. If that is being obstructionist, so be it.

This piece first appeared in the Conservative Review.