This article appears in the December 16, 2013, issue of National Review.
Why did Senate Democrats take the unprecedented step of ending filibusters for presidential appointments, including nominations to the judiciary? According to President Obama and his cheerleaders, it’s a matter of desperate times calling for desperate measures. In a speech before the Senate vote, Obama said that “over the past five years, we’ve seen an unprecedented pattern of obstruction in Congress that’s prevented too much of the American people’s business from getting done. . . . Today’s pattern of obstruction just isn’t normal.” The New York Times heralded the move as “long overdue” and “a return to the democratic process.”
If we have learned anything about this president, it is that his factual assertions need to be scrutinized. So what do the facts say? Have Senate Republicans’ actions really been unprecedented, as the president and Democrats claim?
A landmark new book provides the data we need to check this claim. In Dumbing Down the Courts: How Politics Keeps the Smartest Judges Off the Bench, published this September, economist John Lott collects and examines the most complete data ever assembled regarding the judicial-nomination process. He sifts through data on all nominations to circuit- and district-court judgeships for every president since Jimmy Carter. The nearby chart shows the number of days between judicial nominations and confirmations during different presidential administrations, for nominees to both circuit and district courts, based on Lott’s analysis.
If President Obama’s story were correct, we would expect the data to show that filibustering tea partiers had pushed delays through the roof relative to earlier periods. But the data do not bear this out. The experience of judicial nominees under Obama has not been appreciably different from the trend under previous administrations. Since the presidency of George H. W. Bush, the lag between nomination and confirmation has steadily increased under all administrations, especially for circuit-court nominees. And although the delay for district-court nominees was longer during Obama’s first term than during George W. Bush’s administration, the average lag for the circuit courts has actually fallen.
Lott adds that the lags to a vote on confirmation are just part of the story. Indeed, fully 85 percent of President Obama’s circuit-court nominees have now been confirmed, a much higher percentage than that enjoyed by President Bush, who saw only 72 percent confirmed. The data, then, suggest that Republicans have been on balance less of a political obstacle to President Obama’s nominees than Democrats were to President George W. Bush’s.
This is the second time this fall that the president has lobbed the transparently incorrect assertion that Republicans are acting in an unprecedented fashion and received roaring confirmation from most in the media. Recall that the same was said of the GOP’s desire to attach strings to the increase in the debt limit, despite the fact that 27 out of 53 debt-limit increases had included strings, and 60 percent of those were attached by Democratic Congresses. That the familiar falsehood and its echoes should accompany an assault on a centuries-old Senate tradition suggests that this president is sure to find more “unprecedented” obstacles that require extraordinary responses in the months to come.
-Kevin Hassett is the John G. Searle Senior Fellow and Director of Economic Policy Studies at AEI