[Said in the voice of Homer Simpson:] L.A. Times reporter Carol J. Williams. Is there any legal story she can’t screw up?
Times editors have an editorial today that touts a Williams-penned article about the allegedly slow pace of confirmation of Obama’s judges. Both the editorial and the article it cites do, admittedly, acknowledge that part of the problem is Obama’s slow pace of nominations. But they both imply that Republican stalling tactics are at least half of the problem, if not more. The fact is, though, on closer analysis, basically all of the difference between Bush’s and Obama’s rate of confirmations, at this point in time, can be explained by neutral factors having nothing to do with obstructionism.
In particular, one of the their cited experts says that when you compare apples to apples, the confirmation rate is the same.
Not that the editors or Carol J. Williams told you that. You have to come to this blog for that nugget.
First let’s go to the editorial:
With the exception of his two Supreme Court nominees, President Obama hasn’t made a priority of fully staffing the federal judiciary. Meanwhile, Republicans have stalled the appointments Obama has made in an adolescent grudge match with Democrats — which each party blames the other for beginning.
The result, according to an article this week by Times staff writer Carol J. Williams, is that about one in eight federal judgeships is vacant. Overall, Obama has fared worse than other recent presidents in having judicial nominees confirmed by the Senate. According to the White House, at this point in his presidency Obama has had 48% of his nominees confirmed, compared with 60% for George W. Bush and 68% for Bill Clinton.
I admit that I am having trouble reconciling that with Williams’s article, which came out five days ago, and said:
Obama’s judicial confirmation rate is the lowest since analysts began detailed tracking the subject 30 years ago, with 47% of his 85 nominations winning Senate approval so far. That compares with 87% confirmed during the first 18 months of the previous administration, 84% for President Clinton, 79% for President George H.W. Bush and 93% for President Reagan.
Hmmm. Obama’s rate was 47% five days ago and 48% today? Stranger still, Bush’s rate was 87% according to the news article, and 60% according to the editorial?? (In the five days since Williams’s article was published, did someone go back and retroactively deny a few Bush confirmations while we weren’t looking??? I wouldn’t put anything past Obama at this point.)
Based on these discrepancies, I admit at this point to lacking confidence in these figures. But whichever figure you choose, it still appears that Bush had greater success in getting his nominees confirmed, right?
Mmmm . . . as it turns out, not so much.
Both the editorial and the article quote Russell Wheeler, a Brookings Institution think-tanker. But they don’t tell you that Wheeler has made several findings this year that completely undercut the L.A. Times thesis that Republican obstructionism is a large part of the problem.
Here is a piece from April 15, 2010, in which Wheeler summarizes conclusions from a lengthier study he has done (.pdf) of Obama’s nominations. Wheeler’s lengthier study sets forth several key findings in the introduction, including these:
• proportionately more Obama nominees have gotten hearings, and more quickly;
• confirmation rates after four months of the nomination date are slightly higher for Obama’s circuit nominees than for Bush’s, but the time from nomination to confirmation for Obama circuit appointees is considerably higher than for Bush’s
In his summary article, Wheeler sets forth some of the statistics underlying these conclusions. He acknowledges that Obama’s percentage of confirmations “lags behind” the percentage from the George W. Bush administration. But, Wheeler notes:
The Senate Judiciary Committee has scheduled proportionately more hearings for Obama nominees than it had for Bush nominees. Ninety-five percent of Obama nominees who had been sent to the Senate before February have had hearings, versus 61% of comparable Bush nominees. (Hearings for five more nominees are scheduled for Friday, April 16.) And Obama nominees who got hearings got them an average of 42 days from nomination — 48 average days for Obama circuit nominees, versus 145 for Bush circuit nominees.
Confirmation rates, though, are nearly identical — 69% for Obama nominees versus 66% for Bush’s, counting only judges nominated before December of 2001 or 2009.
Let me say that again, because it’s very important, and I don’t want you to overlook it. For the relevant time frame, Wheeler notes:
Confirmation rates, though, are nearly identical — 69% for Obama nominees versus 66% for Bush’s.
What’s more, using those time frames, Obama’s confirmation rate for circuit judges was considerably higher than Bush’s:
Obama’s gotten seven circuit nominees confirmed (58% of his pre-December nominees), while Bush got six of his 27 circuit nominees confirmed (22%) in the same time.
Why did Wheeler count only judges nominated before December of 2001 or 2009? Because confirmations take somewhere between 4-7 months. So, in an article published in April 2010, it’s not fair to count nominations made after December 2009 — because there hasn’t been time to get those nominees confirmed.
Wheeler also observes in his study:
All 12 of Obama’s pre-February circuit nominees have received hearings, as have all but two of his comparable district nominees (both are South Carolina nominees submitted on December 22). That compares starkly with the 32 percent and 62 percent rate of hearings for Bush’s pre-February nominees. Obama’s pre-February nominees also got hearings sooner than did Bush’s – 42 days, on average, from nomination, compared to 105. Of course, the committee in 2001-02 had many more nominees to consider.
So why do Obama’s nominees take longer to get confirmed? Republican threats of obstructionism no doubt play a part, just as Democrat threats (and worse) did in the past. But Wheeler explains that the gap is also explained somewhat by Obama’s involvement of the ABA, both pre- and post-nomination. (Bush, by contrast, had cut out the ABA, arguing that its evaluations were highly politicized.)
Doesn’t this put a wee bit different spin on the numbers involved?
P.S. If you’re interested in writing the Readers’ Representative to get an explanation as to how Bush’s confirmation rate dipped from 87% in Williams’s article to 60% in the editorial, you may write her here: email@example.com.
UPDATE: I originally put the 87% figure from Williams’s article at 79%. But 79% was the percentage for G.W. Bush, according to Williams. For G.W. Bush, it was 87% — an even greater discrepancy from the 60% number used in the editorial. Thanks to James B. Shearer for the correction.