On May 10, Senate Judiciary Committee Democrats released a report titled “Review of Republican Efforts to Stack Federal Courts.” This is the fourth post examining the report’s deceptions and false claims (previous posts are here, here, and here).
The report (p. 10) claims that “Republicans filibustered Barbara Keenan, nominated to the Eleventh Circuit, and Adalberto Jordan, nominated to the Eleventh Circuit. Keenan was confirmed 99-0, and Jordan was confirmed 94-5.” In fact, neither nomination was filibustered.
A filibuster occurs when an attempt to end debate fails, not when it succeeds. The Senate ends debate by a vote to invoke cloture. The Senate easily invoked cloture on both the Keenan and Jordan nominations before confirming them. That’s the opposite of a filibuster.
Second, Democrats’ criticism seems to be that the Senate should not be forced to take cloture votes on judicial nominations with little or no opposition. If that’s what they mean, then their actions belie their words. Less than two weeks ago, for example, Democrats forced the Senate to take cloture votes on two judicial nominations; the tallies were 94-1 and 90-1. The Senate went on to confirm both . . . unanimously.
The Senate was forced to take similar cloture votes on two judicial nominations in April. One was confirmed 96-1, and the other without a roll call vote at all. March saw the same thing, with Democrats forcing cloture votes on two judicial nominations that were then unanimously confirmed.
In fact, Democrats have so far forced the Senate to take 13 cloture votes, on both district- and appeals-court nominations, where no more than four Senators voted to have any debate at all and no more than three Senators opposed confirmation.
The Democrats’ report also complains (p. 14) that the Senate is confirming too many appeals court nominations. The twelve appeals-court nominations confirmed in 2017, the report asserts, was “the most of any president since the circuit courts were created by the Judiciary Act of 1891” and “one more than Presidents Kennedy and Nixon.” This claim comes close to making sense only by looking at the first year of each new president, but even then there’s some confirmation sleight-of-hand going on.
Suppose you learned that, on average, a loaf of bread cost $1.30 and a dozen eggs cost $1.50 last year, compared to 21 cents and 30 cents, respectively, in 1961. Those look like huge increases until you learn that, adjusting for inflation, that 1961 loaf cost $1.72 and those 1961 eggs cost $2.46.
The confirmation-process version of adjusting for inflation is adjusting confirmation totals for the size of the judiciary. Congress creates new judicial positions now and then, so it’s more honest to look at confirmations in a given year not simply as a total, but as a percentage of the judiciary. The twelve appeals-court nominations confirmed in 2017 amounted to 6.7 percent of the 179 total positions on the U.S. Court of Appeals.
In fact, from the Kennedy through the Obama administrations, the Senate confirmed each year an average of 6.3 percent of the U.S. Court of Appeals, almost identical to 2017. In 2014, during the Obama administration, the Democratic-controlled Senate confirmed the same percentage of the U.S. Court of Appeals as Republicans did last year for President Trump.
It appears that that Democrats in 2014 were perfectly comfortable with that confirmation pace, at least for a president of their own party. Oh, what a difference an election and three short years make.
This piece originally appeared in The National Review