The Washington Examiner writes this morning that President Obama may “surpass President George W. Bush’s score when it comes to judicial appointments,” and notes that Obama “seems likely to break Bush’s mark with help from a Republican-controlled Senate.” The sole basis of these claims is that Obama is 11 judicial appointments short of matching Bush’s total for his entire eight years. Setting aside that this historically awful Republican majority is barely on pace to confirm 11 more judges this entire Congress, the article demonstrates the absurdity and uselessness of fixating on confirmation totals in isolation.
As an initial matter, judicial selection isn’t a political game of comparing total confirmations. The real measure is not the number of judges confirmed but whether the number of vacancies is falling and the judiciary is fully staffed. So long as vacancies are growing, justice in America is being needlessly denied, and confirmations that can’t keep pace are just a drop in the bucket. As it happens, Obama has had over 40 more vacancies than did Bush at this same point in his presidency, providing a far better explanation for higher confirmations than the notion of preferential treatment for Obama nominees. With vacancies factored in, Obama is actually behind the rate at which Bush appointed judges.
Which brings us to the comedic relief in the Examiner article. It quotes Thomas Fitton, president of the conservative watchdog organization Judicial Watch, arguing that “it’s fair to say that Republicans have bent over backwards . . . to allow many bad and dubious nominees through.” That claim is so divorced from reality you wonder if Fitton has been watching the same Senate as everyone else. First, let’s back up to the fall of 2013, when a Republican minority filibustered three noncontroversial nominees to the D.C. Circuit, forcing Democrats to change the filibuster rule, restore regular order, and allow confirmations via simple majority. Republicans had no issue with the nominees individually—they were intent on blocking Obama from appointing anyone to the Court. For Republicans, the test hasn’t been whether nominees are “bad” or “dubious,” but whether they are Obama nominees.
This unprecedented obstruction has only escalated since Republicans took the majority in January. This Senate has confirmed only six judges so far in 2015, the worst single-year pace since 1953. As a result, the number of current vacancies has gone up over 50 percent and the number of judicial emergencies has gone up over 150 percent. Far from “bending over backwards” to confirm judges, Senate Republicans are engaged in a deliberate strategy of delay and obstruct, sacrificing our justice system to limit Obama’s impact on the courts and preserve vacancies for a future Republican president.
The Examiner’s focus on confirmation totals gets things wrong in two ways. It obscures the central importance vacancies and relieves the Senate of its duty to confirm judges based on incomplete information. It also gives the least productive Senate majority in the modern era credit for the “help” it gives to Obama’s nominees. The Examiner should know better. Thankfully the American people already do.