On Judicial Nominee Hold ups.
[This is a slightly re-worked comment I placed on another bloggers site. I think the argument it makes is worthy of posting here as well. --Liam]
The Republican argument against the filibuster seems to be that all judicial nominations have the right to a yea or nay vote, and that filibuster denies them the right to even be voted upon. This is presented as though to prevent such a vote is clearly thwarting the will of the masses, and the way the political process is supposed to run. So let's take a look at that twarting more closely.
Even forgetting the (attempted but failed) filibusters of two Clinton appointees, the Republicans in the congress of his day did something equally heinous: 45% of his nominees were returned without a vote during the time he had a Republican controlled Senate. Clearly a different tactic, but the result was exactly the same, fully 45% of Clinton judicial nominees were not allowed their yea or nay vote. This is 45% of the nominations sent by Clinton to Congress. If you'd prefer to argue that nominees which were nominated multiple times should only count once, then 35.3% of the nominees sent by Clinton were blocked. And as far as I can tell, none of these were voted down, they were all blocked and sent back to the White House without a vote.
According to one site I found, Clinton nominations were blocked at a rate 72% higher by the his Republican congress than Reagan/Bush Sr. nominations by their Democratic ones. Modifying again for nominees (to remove people nominated more than once), 39% higher.
Compare these numbers to the current numbers. The Democrats are filibustering or threatening to filibuster 10 of a group of 34 judicial nominees by Bush Jr. That's a rate of 29%, significantly lower than the 45% rate of blocking of Clinton nominations by Republicans in Congress. The Republicans changed their tactic from filibuster to outright blocking (without a vote) of nominees when they took over a majority of the Congress, but the result was the same, nominees who, according to the CURRENT Republican argument, deserved to have their up or down vote were prevented from having that vote.
And by the way, part of the reason why the Democrats are stalling as much as they can on the most far right-wing of nominees is because some of them are nominated to vacancies which SHOULD have been filled by Clinton appointees, but weren't because they were repeatedly blocked by the Republican congress. Not surprising, I'd fully expect Democrats to increase their attempts to block candidates as the end of Bush's second term approaches (in the hope that a Democrat will win next, and be able to fill those seats). But let's be clear on the numbers and the reasons.
The nomination confirmation process is supposed to provide another check and balance against "stacking the deck" with extremist judges in either direction. It's why I'd prefer to see the required number of votes to confirm a nominee INCREASED. The harder it is to get extreme candidates through, the more moderate our judicial benches will of necessity become, and the only way to confirm truly extreme nominees would be if the country were so overwhelmingly in favor of that extreme that one party truly controlled the Presidency and a vast majority of Congress.
But as to the current issue, the argument being made is that Democrats are performing an unprecedented prevention on nominations getting their rightful up or down vote. This is not only NOT unprecedented, the Republicans are being made to lie in a bed they made, and they don't like it.
Copyright (c) May 18, 2005 by Liam Johnson. http://www.liamjohnson.net
posted by Liam at 5/18/2005 09:13:00 AM
20 Comments:
Depending on one's point of view, a real debate could be made for each partie's argument on this judicial filibuster topic. The reality is that this is politics. Looking at the judicial nominees, I like what I see. The problem I think the Democrats have with these nominees is that a few of them, if confirmed and serving when a vacancy appears on the Supreme Court, might get appointed to it (Supreme Court). The fact that I, a conservative, like their history goes to the reasons the Democratic leadership does not want them confirmed nor have the opportunity to serve on the highest court in the land.
Wednesday, May 18, 2005 9:53:00 AM
Yes, but let me throw out another statistic...
The 10 nominees of this batch of 34 that have been blocked represent 10 out of 218 nominees sent to Congress. The other 208 have been voted upon. (I don't know how many have been confirmed, but that's not the point of the current argument).
That means that the Republicans are getting all high-and-mighty over 4.6% of Bush's nominees. Over 95% of his nominees have made it to the vote, which far exceeds the percentages of his father, Reagan and Clinton. Twenty years of precedents, but suddenly it's an affront to the process that anyone would DARE to try to block less than 5% of a President's nominations. When nominating over 200 people for ANY post, I'd be surprised if somewhere on the order of 10 of them weren't questionable.
This is not a willy-nilly attempt by the Democrats to prevent Bush from having judicial nominations confirmed. It's a targetted blocking of a specific few extremists, politics as usual. If anything, the Democrats are exercising extreme restraint (although granted that probably has more to do with their current minority status than any inate principle).
And the other part of this that isn't getting much play is the fact that these are the same 10 which Bush nominated in his first term and were successfully blocked.
I think what this really is is a political ploy. The Republicans don't care if they win this one. They didn't particularly care that they didn't win those 10 last term. But by sending them again, Bush forces the Dems to try to block them again, and then by making a huge public furor over them, he makes it more difficult for the Democrats to block him on other things.
It's all a political game.
Liam.
Wednesday, May 18, 2005 10:55:00 AM
Liam,
You are a partisan Democrat. Nothing else explaing your reasoing.
Wednesday, May 18, 2005 11:05:00 AM
Again, a conservative can't find facts to bolster his argument, and can't conceive of the idea that someone could DISLIKE one particular administration and not necessarily be FOR the other side, and so opts to substitute labelling the other side for actual substantive rebuttal.
It's sad when the best response you can come up with to my argument is to label me a liberal. Call me a liberal. Call me a communist if you want to. It doesn't change my argument, nor the fact that you didn't even contradict what I said, merely tried to invalidate me with your label.
Liam.
Wednesday, May 18, 2005 11:13:00 AM
(And by the way, how are you anything BUT a partisan Republican, if you honestly think that 5% of blocked Republican nominations is an insult to our society, but 45% of blocked Democratic nominations is perfectly acceptable and in no way thwarting the process?)
Wednesday, May 18, 2005 11:16:00 AM
Liam,
When you refuse to differentiate between circuit judges and appelate judges in your analysis, when you refuse to distinguish a Democrat party policy of blocking Bush appointees from a group of Republicans unsuccessfully attempting to block Clinton appointees, when you continue to repeat the same talking points louder and louder each time, it becomes apparent that you are not seeking dialogue but conquest.
I don't deny being a partisan Republican but you keep insisting that you are a reasonable open-minded moderate. I was just observing that there is an apparent disconnect between your self-image and the reality.
Don't think that I am saying I don't like you or anything like that. You are a very interesting and energetic guy. I just want to keep the conversation honest and suggest that it is healty to ocasionally question what you know as truth.
Wednesday, May 18, 2005 12:12:00 PM
Fair enough, and I'll do a bit more research later tonight into the counts of Appelate vs Circuit judge counts... However, I know at least some of the 10 in question which are currently being blocked are nominees to fill slots in the same court which were left empty when Clinton left office, because HIS nominees to the same courts were blocked by the Republicans.
The tactics are admittedly different, based on circumstances. But the fact remains that a much higher percentage of nominees by each of the three previous administrations was blocked by some method or other than has been blocked for THIS administration. To complain that somehow it's unfair to THEM, when it's how things have been done for years is absurd. (After the track record of the preceding 20 years, one would expect an administration being told they'd been blocked on only 5% of nominations to go "Woo hoo! We win!" not "Boo hoo! They blocked those 10!")
If you have a breakdown of circuit and appelate judges, I'd love to hear it. What was the percentage of each blocked under Reagan, Bush I and Clinton, what is the percentage under Bush II?
And by the way, we're not talking about UNSUCCESSFULLY blocking Clinton appointees. True, the attempt to block them via filibuster was ultimately unsuccessful, but again, 45% of Clinton's nominations were blocked from receiving a vote by the full Senate. Blocked. Entirely. It's just that they were blocked by never allowing the vote to come up, instead of by filibustering to prevent the vote from coming up. So where is the distinguishing feature, between a Democratic policy of blocking a small percentage of Bush appointees which they find particularly troublesome, and a Republican policy of blocking a comparatively LARGE percentage of Clinton appointees which they similarly found abhorent?
Really, if you have numbers to support your claims, I'm open to them. If these 10 all represent one type of judge, and most of the ones blocked for Clinton were of the other type, that's information I don't have and worth knowing.
But I'm not repeating talking points, I'm repeating the facts as I understand them. In order to change my mind, you have to present other facts, or show why the facts as I understand them are somehow either faulty or misleading.
And right now, what I understand is that Bush is complaining about 10 nominees out of 218, less than 5% of the total, while Clinton was subject to similar blockage of 45% of his nominations, or 35% of nominees.
Again, I want to know what I might be missing here. Please, if you can show me why the 5% are somehow significantly more odious than the 35%, I will happily change my mind. If you can show me how blocking 5% represents a policy of blocking appointees, I will change my mind.
As it is, to me the administration looks like a child joining a gang, happy to watch the other gang members treating everyone like dirt but then crying to Mommy when subjected to a taste of his gang's own medicine.
Liam.
Wednesday, May 18, 2005 12:38:00 PM
(Oh, and...)
To the point of my being a partisan Democrat... understand that my focus is on spotlighting those behaviors which I find both wrong and potentially damaging to the nation. To that end, I'm in favor of ONE of the two main elected branches of government switching hands. I was happy when it happened to Clinton, who had temporarily upset the balance by winning the White House with a Democratic congress.
But the point is, I try not to worry too much about stupid behaviors which have proper checks and balances, which is why I'm not focusing on any Democrats right now. It doesn't matter how corrupt they might be, they aren't in a position to really put ANYTHING over on anyone.
Hell, they shot themselves in the foot. At a time when Bush's approval was polling at significantly below 50%, and polls asking preference in an election between "Bush" and "Not Bush", "Not Bush" was winning handily, they managed to nominate a candidate who polled even lower than Bush did.
The electorate was LOOKING for a change. WANTED a change. Poll after poll indicated that the majority wanted to be rid of Bush, until the Democrats nominated someone they trusted even less.
So certainly the Democrats do stupid things. But right now, those elements of Democratic stupidity which are not self-limiting (like the Kerry nomination) are limited by their relative lack of power anywhere.
On the other hand, there is little keeping the Republicans from the extremes of their party's platform, and what little there is (like the filibuster rule) should stay in place, both to protect this country from swinging too far to the EXTREME right wing as to protect it (in 4, 8, 16, 20, however many years until the political pendulum swings back, as it always ultimately does) from the extreme left wing.
I really am a centrist. And when there are Democrats in a position to do potentially harmful and damaging things unchecked, you can bet I'll be writing about them. Right now, I'm faced with a leader (who happens to be Republican) who lied to get us into a war, has thus far for four years failed to get the leader of the group which attacked us and has lowered international opinion of this country to the point that most countries only side with us because we're the bully on the block, instead of because they like us and actually agree with us.
I don't like the man or the things he's done, I don't like the (much less safe) position he's left us in the world, and his party controls the congress as well, so there's really no one keeping him in check. Why would I worry about what a few immasculated Democrats might be up to?
Liam.
Wednesday, May 18, 2005 12:50:00 PM
Liam,
First of all, I apologise for the comment. It's one of those things you do when confronted with more than you can handle at that moment. Meant to stop you short for a moment. And not really accurate. It reflects on me more than you and your comments above prove that.
Now, I have read the statistics. I just can't remember where right now. When I find them I will let ou know.
Wednesday, May 18, 2005 11:35:00 PM
Liam.
http://dalythoughts.com/index.php?p=2983
Here is the link. I don't know how to make it live.
Wednesday, May 18, 2005 11:47:00 PM
Hmmm. Interesting. Those numbers definitely don't match what I found when I was searching (and I wasn't on sites I knew to be liberal sites, either, which is why the "Talking Points" line annoyed me).
I'm going to have to spend some time looking through the sources listed on that page and see if I can figure out the discrepancy. Clearly there is one. One site claims 218 Bush nominations, the other 66. One site claims only 10 of those 218 have not been confirmed, the other claims 31 of 66 have not been.
There has to be some explanation for the differences in counts. My best guess is that neither side is being entirely honest. (What did I expect? Honesty out of politicians? Am I stone?)
I'm betting a bit more research will turn up that they're counting entirely different sets, and perhaps the TRUE number of judicial nominees will turn out to be more like 284 (218+66) with 239 (208+31) confirmed. But of course, that's just a guess.
I simply don't believe that either side MADE UP their numbers (although the effect is the same). They have to be counting distinctly different things...
I'll let you know what I turn up.
Liam.
Thursday, May 19, 2005 12:33:00 AM
Most interesting. It appears no one is being honest. What a shock.
The site Ralph referenced points to a PDF of a report on the senate.gov website (link).
Counting all of Clinton's years and Bush's first 3 (through 12/9/03), the confirmation percentages appear to be:
District Court:
Clinton: 307 of 352, or 87.2%
Bush: 138 of 165, or 83.6%
Circuit Court:
Clinton: 65 of 91, or 71.4%
Bush: 30 of 50, or 60.0%
Combined:
Clinton: 372 of 443, or 84%
Bush: 168 of 215, or 78.1%
(These numbers count each nominee once, so this is percentages of NOMINEES, not NOMINATIONS.)
These percentages aren't particularly damning to either side. HOWEVER, Clinton's include rejectees who may have been re-submitted and subsequently accepted. I believe (I'll try to find the sources) that a number of those "Not confirmed" in the Bush column have subsequently been confirmed. Note the total number of nominees is 215, which is pretty close to the 218 number.
I'll keep digging, but that's what I've found so far. Perhaps a SLIGHTLY greater number of rejectees for Bush than for Clinton, but certainly not the "Vast Liberal Conspiracy" that's implied by the site Ralph linked to.
(And by the way, one commenter on that blog said that Filibuster had never been used against a nominee before, and that's just blatently wrong. It has never been used SUCCESSFULLY against a nominee before, but that's kind of like accusing someone in court of shooting you, because you shot at them first, but since you missed, claiming the other person was the first to shoot someone.)
Anyway, at this point I'm ready to back off from what does seem to be Democratic talking points in the vast numbers in Bush's favor (although I'm going to continue researching) if you're willing to admit that the numbers against Bush aren't as clearly anything other than "Business As Usual" as the Republican talking points would have us believe.
(I'll keep you informed as I find new information.)
Liam.
Thursday, May 19, 2005 12:58:00 AM
OK, I found the appellate court numbers for Clinton. That 45.3% number I quoted before was for appellate court returns for Clinton over the years that the Republicans controlled the congress, and compares against the number of returned nominations for Reagan and Bush Sr. when facing a Democrat Congress, rate is 26.3%.
Right now, I'm not finding any numbers on Bush yet (and we certainly can't find any numbers on Bush with a Democrat controlled Congress, because he's been even or Republican controlled the whole time).
But one thing this DOES indicate is that the Republican Congress blocked 72% more of Clinton's appellate nominees than the Democrat Congress had previously done to the last two Republican Presidents.
Meaning that this process of blocking appellate nominees may be rising, but the increased warfare did not begin with the Democrats, they perhaps ramped up their attack after seeing what was done to Clinton.
(Still not saying it's right on either side, just noting the differences.)
I still want to see if I can find the source of that 8 out of 218 number, see what that really represents.
I found one site (Dated in 2003) which indicates that the total number of nominations for Bush to that point was 168 nominations, 6 returns, but if you narrow it down to Appellate court confirmations only, it's 29 confirmations out of 46.
However, you'll note that the 29 number was the number confirmed. Very few judges are ever denied, according to the other chart I posted. If they come to a vote, they're generally confirmed, so for the most part, the numbers break down into confirmed and blocked. Which means if only 6 have been blocked (returned), but only 29 have been confirmed, it would seem the logical conclusion was that at the time of the report, at least 11 of Bush's appellate court nominees were still in the pipeline. It would be interesting to see what happened with those 11.
Still researching. (Can't sleep tonight. By morning, there will probably be way more statistics here than anyone cares to read, and by the time the last ones post, odds are my analysis of them will be flawed...)
Liam.
Thursday, May 19, 2005 1:27:00 AM
Well, I found one source of the Republican statistical bias: The number most often quoted (46% confirmation rate) is as of April 19, 2002. 45 confirmations of 97 nominees.
Additionally, the 27% confirmation rate for appellate court numbers comes from the same date, 8 of 29 confirmed.
I suppose there is a certain precedent for that, in that those were the years with the largest number of Democrats in the Senate, but still, quoting 3 year old numbers as "The rate of confirmation for Bush nominees" is a bit dishonest. (Then again, so is comparing Bush's total numbers against Clinton's only when he faced a Republican controlled Congress).
It's still looking like the numbers I quoted above (which are much closer than either side would admit, although clearly favor Bush in the "Who got screwed more" department) are the most honest ones to date, but they still only include numbers until Dec. 9 of 2003. A lot could have changed in the 17+ months since then.
I'm still trying to locate numbers for 2004.
Liam.
Thursday, May 19, 2005 1:41:00 AM
As of July of 2004, it looks as though 198 Bush nominations (no breakdown by court) had been confirmed, 10 were being blocked. No count on how many may have already been returned or may have been voted down, but that number (198) is described as "the vast majority".
So it's sounding like over the last few years, a whole batch of those pending nominations (which the Republican statistics were counting as "not confirmed") have subsequently been confirmed.
It's looking more like the accurate current number really is 10 blocked nominees, 208 confirmed out of a total of 218.
Question, of course, is how many of the 10 are Circuit (appellate) Court nominees and how many of the 218.
But if we go back to the end-of-2003 numbers, at that point Bush had 50 Circuit court nominees, so even assuming all 10 blocked nominees are for Circuit court seats, that's still an 80% confirmation rate for Bush appellate judges (and a 100% for District court judges).
Of course, I'm making some assumptions here, and they may not be correct (finding recent numbers is REALLY difficult), but I'm starting to suspect that the Democrat talking points may actually be more honest (or at least, more current) than the Republican ones.
Which brings me back to: Complaining over 10 blocked nominations (less than 5% of total nominations, no more than 20% of appellate court nominations) compared to the Clinton record of 16% (28.6% of appellate) rejections seems disingenuous.
And really, if those are the accurate numbers, I still think re-nominating the 10 was probably more a political ploy. If the numbers bear out, and Bush has honestly enjoyed a higher confirmation rate (both total and Appellate) thus far than any of his three predecessors, then he doesn't really care about the 10, he put them back up there so that the Dems would be forced to block them all over again, so that they could raise this ruckus and cost the Dems political capital they can't afford.
(I am still looking for more complete numbers from 2004, by the way. I recognize that a certain amount of this is conjecture. But it is conjecture based on more and more data. I'm becoming more and more confident that the numbers are correct.)
Liam.
Thursday, May 19, 2005 1:55:00 AM
Final statistic (because my eyes are getting blurry) can be found on the Senate web site, here.
According to this page, as of March 28, 2005, 204 Bush nominees had been confirmed thus far. It does not give total statistics, but the statistics for THIS Congress (the 109th) were:
Circuit Court: 18 of 34 confirmed, 11 on the floor, 4 in committee.
District Court: 86 of 96 confirmed (1 on the floor, 8 in committee).
I'm not even sure what these numbers mean, though. The total nominees for the 109th Congress is listed at 131.
I'm more interested in that 204 number, though, and would like to know how many nominees that represents.
The answer appears to be that our government so favors it's ability to lie about statistics that it's almost impossible to get good, recent ones.
All in all, though, I'm finding closer support for the Democrat talking point numbers than the Republican talking point numbers (which all seem to rely on data between 2 and 3 years out of date).
Liam.
Thursday, May 19, 2005 2:21:00 AM
Liam, you were up late looking at stats. I just had a chance to read them. In one of your posts you stated that one blog stated that no "nominee" had ever been filibustered before and you said that was a lie. If you mean Judge Abe Fortis, he was not a "nominee" as he was already on the Court, and the filibuster was by-partison against his being recommended to the office of Chief Justice of the Court.
All the numbers are interesting, but the point of the whole thing is that there are 10 qualified judges (highest ratings from the ABA), with a majority of the Senate willing to vote on and pass, has been for two years, and the minority is keeping this from occuring. Advise and Consent does not mean block.
Thursday, May 19, 2005 2:36:00 PM
I'm not actually talking about Fortas. I'm talking about two Clinton nominees who were initially filibustered (and Tom Delay at the time supported the filibuster). The filibuster was ultimately unsuccessful (I don't recall if those performing it gave up, or whether a cloture vote successfully stopped it), but it WAS tried.
That's why I think the current Republican argument is like telling the judge "He shot me 10 times, unprecedented." "But you shot twice at him!" "Yes, but I missed. Between us, no one had ever shot anyone before!"
That wouldn't work in court. If you TRIED it, the judge would rule against you. Just because the other guy was a better shot when he was defending himself doesn't mean you didn't start it.
And I understand the point. But my point is that the reason we have senate confirmation is to try to prevent extremist judges from getting on to the bench, and whether it's by design or because it's all the power they have, the Dems have chosen these 10 as the 10 they find most extreme. The description of them as "qualified" doesn't really get to the heart of their politics.
All I'm saying is that there has always been blockage (through one tactic or another) of the most extreme judicial nominations. It has always been thus, exactly to keep our Judiciary moderate, not too far left, not too far right. Because of the current numbers in the Senate, the Dems have to come up with creative ways to object to or block the most extreme nominations, but to act as if no party has ever blocked those nominations they felt too extreme is just false.
Read through those statistics. Blocks happen all the time. Candidates are returned un-voted on because various stalling techniques have been used to prevent them from coming to a vote until they expire. Techniques have ranged from stalling it in committee so it's never brought up for a vote to the two Clinton and 10 Bush nominees being filibustered. It's time honored tradition, with a slightly new tactic is all. All that's new here is if they succeed in the filibuster where the previous examples failed.
I'm tired of the self-righteous "Every nominee deserves a vote" garbage, when the statistics going back as far back as you care to go indicate otherwise. Maybe they DESERVE a vote, but the Senate has never before felt obligated to give them one.
Notice that in almost every case, the result is either "Confirmed" or "Returned". Rarely, there's a "Withdrawn", but almost never "Voted Down". They just don't come up for a vote if they're not going to be confirmed. It's just disingenuous to claim now that all candidates deserve a vote, after years of BOTH parties behaving otherwise.
Hell, it's just 10 candidates, if you really want to be bi-partisan, withdraw the 10 and find 10 different candidates. Re-submitting the same 10 who were blocked once is just saying "No, we don't care if you like them or not, we want to ram them down your throat", and the Democrats are saying "No, the confirmation process is about making sure the judges are not too extreme. These are two extreme, and we'll do what we have to to block them".
And don't be surprised if this vote comes through to engage the so-called "Nuclear Option", if the Democrats then start filibustering everything they can get their hands on and slowing down the rest of Congress. They're the minority, it doesn't mean they get NO say, just a lot less, and if you start changing the rules under which everyone has always played, you're just asking for a war.
In the end, is it really worth effectively shutting down the Senate (slowing to the point of stasis) just to win this point? For the Democrats, it's the only weapon they have, they'll use it because they have no other. For the Republicans, it's simply a matter of flexing their muscles to show how strong they are.
Liam.
Thursday, May 19, 2005 3:44:00 PM
Two things Liam, one is I have never heard of two of Clinton's appointies being held back because of attemted filibusters. That certainly doesn't mean it didn't happen as I am not a student of history, but your right on it being a matter of politics as is all things in Congress(both houses).
And since we agree it is politics, I still say that if any of these nominees get appointed, and they are serving when a Supreme Court position opens, they will get nominated by Bush. Since they have already been vetted and voted on by the full Senate, the Dems. will have a really hard time denying (spelling?) them their confirmation. Since the Dem. party leaders owe their allegience to the pro-abortion crowd of the Democratic party, and they really don't want a pro-life judge on the Supreme Court....well you get the message.
Thursday, May 19, 2005 11:28:00 PM
The reason the conservatives claim this is the first time it's happened is that the filibusters of Clinton's nominees were not successful, so the appointees were not held back, and got their vote. But as I've said before, shooting a gun at someone and missing doesn't mean that when they shoot at you and HIT you, it's unprecedented.
The point is that the two sides disagree on ideology. We know that. And Clinton was forced to leave a number of judicial seats open due to Congressional delays, so the argument that holding up Bush's nominees is what's holding up filling the seats is bogus. Clinton nominees were held up by conservatives for being too liberal, Bush nominees are being held up by liberals for being too conservative.
That's how it's supposed to work! Our executive and legislative branches may swing with the tides, bending left or rigth as the will of the masses changes (at least, we hope it's based on the will of the masses), but the judiciary is supposed to be moderate in all things. That's why Congressional approval is required. It's supposed to KEEP extremists off of the bench.
Liam.
Sunday, May 22, 2005 10:22:00 PM
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