President Obama’s timing could have been better. Only two weeks ago in Texas, at a fundraiser, he bragged about “remaking the courts.”
Obama told the audience: “In addition to the Supreme Court, we’ve been able to nominate and confirm judges of extraordinary quality all across the country on federal benches. We’re actually, when it comes to the district court, matching the pace of previous presidents. When it comes to the appellate court, we’re just a little bit behind, and we’re just going to keep on focused on it.”
This was quite a change from June, when he accused Republicans of “cynically” engaging in “unprecedented” obstruction of judicial nominations. The president made those charges when he nominated three judges to the US Court of Appeals for the District of Columbia: Patricia Millett, Cornelia Pillard and Robert Wilkins.
With Republicans filibustering these nominations over the last three weeks, Democrats are now threatening to deploy the “nuclear option” — in effect, ending the ability of senators to filibuster court nominations. On Monday, after the vote to break the filibuster on Wilkins failed, Senate Judiciary Chairman Patrick Leahy (D-Vt.) warned: “The talk about changing the cloture rules for judicial nominations will no longer be just talk. There will be action.”
But this is all political rhetoric; the complaints are exaggerated. In fact, George W. Bush suffered stiffer resistance and longer delays for his nominees than Obama. Bush’s nominees to the DC Circuit faced confirmations dragging on for 707 days on average, with one particular nomination (Brett Kavanaugh) dragging on past 1,000 days. By contrast, Patricia Millett was nominated on June 4 this year and obtained a vote by the Senate just 149 days later, on Oct. 31; Pillard, 161 days; Wilkins, 167 days; and Caitlin Halligan, 433 days. Earlier this year, the Senate confirmed Obama’s nomination of Sri Srinivasan for the DC Circuit after a 346-day wait.
The president’s claim of an “unprecedented” obstruction by Republicans, of course, referred to more than just his nominees to the DC Circuit, but it is still misleading. Obama’s circuit court nominees during his first term faced confirmation battles lasting 268 days. Again, that pales in comparison to the 362 days Bush’s nominees took.
Nor do the confirmation rates bare out Obama’s concerns. Of all his circuit court nominations during his first term, the vast majority, 85 percent, have now been confirmed. Bush got only 72 percent of his nominees confirmed. In fact, a couple of the openings on the DC Circuit court are only available because Democrats refused to confirm Bush’s nominees.
In June, Halligan’s nomination was Obama’s No. 1 example of unfairness, claiming she faced “2½ years of languishing in limbo,” 889 days, and blaming Republicans. But, the Senate rejected her 433 days after her first nomination. Obama only obtains his total by including his highly unusual action of ignoring the Senate and renominating her for the same judgeship, and, incredibly, also the 288 days it took Obama to renominate her.
Halligan was always really a long-shot, as she was unusually left-wing. She advocated holding gun-makers liable for any misuse of their guns and believed race should be explicitly used as a factor in college admissions.
Obama’s DC Circuit nominees this year are no less radical. Pillard, for example, a law professor at Georgetown, strongly disagrees with all nine Supreme Court justices and argues federal discrimination laws should determine religious organizations’ selection of religious leaders. She also contends abstinence-only sex education is unconstitutional.
Judicial confirmations have become much more confrontational. But the problem is more than just how many Democratic and Republican nominees get confirmed. My own research finds that the smartest, most potentially influential nominees have the most difficult time getting confirmed. Democrats have fought harder against the most potentially influential Republican nominees than Republicans have fought against those Democratic nominees.
As the ruckus over the nuclear option heats up, just remember that, when Obama was a senator, Democrats gave George W. Bush’s Circuit Court nominees much tougher confirmations.
John Lott is author of “Dumbing Down the Courts: How Politics Keeps the Smartest Judges Off the Bench” (
Bascom Hill, 2013) and president of the Crime Prevention Research Center.