Harry Reid, Obama Sell Myth of GOP Obstructing Judicial Nominations

COMMENTARY Political Process

Harry Reid, Obama Sell Myth of GOP Obstructing Judicial Nominations

Jul 26, 2013 4 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

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

The rush by Senator Harry Reid (D-NV) to push through President Obama’s latest judicial nominees before their records can be thoroughly reviewed is underway. On June 4, while announcing his nomination of three more judges to the U.S. Court of Appeals for the District of Columbia, President Obama repeated what has become a Democratic mantra: Republican senators are unfairly blocking judicial nominees with “unprecedented” use of the filibuster. It’s gotten so bad, the president noted, that his nominees wind up waiting three times longer than George Bush’s to be confirmed.

It’s a great tale of political victimization. But it’s a myth.

Since President Obama took office, the Senate has confirmed 201 of his judicial nominations, including two Supreme Court justices. If that’s a blockade, it’s mighty porous.

Indeed, the Senate has rejected only two of the president’s judicial nominees.

During George W. Bush’s presidency, Senate Democrats filibustered 10 judicial nominees, defeating five of them. Compared to Bush, President Obama enjoys a tremendous success rate with his judicial nominations.

Nor can Republicans be charged with unprecedented “slow-walking” of nominations. After all, Senate Democrats denied Peter Keisler, Bush’s nominee to the D.C. Circuit, a vote for almost three years. Compare that to the unanimous May confirmation of Sri Srinivasan for the same court, which is a far cry from the claim that Republicans “continue to hold up a record number” of judicial nominees.

Bush’s circuit court nominees had to wait an average of 283 days for confirmation after being nominated; Obama’s nominees have had to wait for 240 days.

Why, then, are there so many court vacancies? The main reason is the slowness with which President Obama has made judicial nominations.

He has nominated judges for only about a third of the current vacancies in federal courts — a significantly lower percentage than either George Bush or Bill Clinton.

Of the 33 declared judicial “emergencies,” President Obama has submitted nominations for only eight — and four of those came in June. It’s hard to see how this can be the Republicans’ fault when the Constitution specifically gives the president the power to nominate judges.

As for Mr. Obama’s plea back in June? There is no emergency or “urgent court” vacancy in the Court of Appeals for the District of Columbia that requires quick confirmation of the three nominees announced that day. In fact, the D.C. court is one of the most underworked courts in the nation.

In July 2006, eight Democratic senators led by Patrick Leahy (VT) and Chuck Schumer (NY) sent a letter to Arlen Specter, then the Republican chairman of the Senate Judiciary Committee, asking for a postponement of Peter Keisler’s confirmation hearing for the D.C. Circuit. Why? Because the court’s workload “did not warrant” more judges. They pointed out that, since 1997, “by every relevant benchmark, the caseload for that circuit has only dropped further.”

In 2006 when the senators complained about the Circuit’s low workload, there were 1,380 appeals filed with the court. Last year, there were only 1,200.

As the Wall Street Journal [1] noted, the D.C. Circuit has only “108 appeals per authorized judge, compared to roughly four times as many on the Second and Eleventh Circuits.”

So there is no need to rush through the nominations of Nina Pillard, Patricia Millett, and Robert Wilkins to the D.C. Circuit as Senate Democrats are now doing, including a scheduled hearing [2] for Pillard (who has a very lengthy written record on legal issues) this Wednesday only five weeks after the Senate Judiciary Committee received her questionnaire and only two weeks after the hearing on Millet. Hanging over this unseemly rush and of particular concern is Senator Reid’s demonstrated desire to fundamentally alter Senate rules to ram through the president’s nominees.

While a recent “deal” was struck [3] to avoid the Senate going “nuclear,” Sen. Reid essentially got a 51-vote confirmation rule on the president’s executive nominations without having to change the filibuster rule. But Reid refused to pull the nuclear option off the table, so that threat is looming in the background of the D.C. Circuit judicial nominees. Not only is the D.C. Circuit a stepping ground to the Supreme Court, but Democrats seem intent on changing the balance on the Circuit by confirming more liberal justices to avoid decisions like the one striking down Obama’s recess appointments to the NLRB as unconstitutional.

It is critically important for the Senate to take a hard look at the records and backgrounds of these three nominees, and judicial nominees in general. After all, once seated, they effectively serve for life. One of Obama’s nominees to the D.C. Circuit, Georgetown law professor Nina Pillard, has been described as a “complete ideologue” and a “Reinhardt in a skirt but less moderate.” As Ed Whelan points out [4], since “Ninth Circuit judge Stephen Reinhardt has a strong claim to being the most aggressive leftist ever to sit on a federal court of appeals, it’s difficult to imagine a more damning assessment.” Typical of Pillard’s legal views is her stance [4] that women are “conscripted” into maternity and that anyone who opposes requiring employers to provide insurance coverage for contraception simply reinforces “broader patterns of discrimination against women as a class of presumptive breeders.”

To whatever extent there is a judicial “crisis” caused by vacancies in the court system, the problem can be best remedied by the timely nomination of qualified jurists by President Obama, with an eye to redressing emergency situations first. To really speed things along, the president might try putting forward more mainstream, less controversial nominations, rather than radical ideologues. And while the White House and the Senate concentrate on those tasks, nominees for the nation’s more “feather-bedded” courts can wait.

- Hans A. von Spakovsky, a senior legal fellow at The Heritage Foundation, is a former counsel to the Assistant Attorney General for Civil Rights.

First appeared in PJ Media