The Obama Administration has announced nominees to the federal bench at relatively slow pace thus far, as I noted here and here. Now the lag is beginning to get more attention. As the NYT reported over the weekend:
President Obama has sent the Senate far fewer judicial nominations than former President George W. Bush did in his first 10 months in office, deflating the hopes of liberals that the White House would move quickly to reshape the federal judiciary after eight years of Republican appointments.Mr. Bush, who made it an early goal to push conservatives into the judicial pipeline and left a strong stamp on the courts, had already nominated 28 appellate and 36 district candidates at a comparable point in his tenure. By contrast, Mr. Obama has offered 12 nominations to appeals courts and 14 to district courts. . . .
The White House contends that the number of confirmations, not nominations, is what matters. They argue that they were proceeding more methodically than Mr. Bush’s team — in ways like making a greater effort to consult with home-state senators — and so a higher percentage of Mr. Obama’s nominees would ultimately become judges. . . .
By this point in 2001, the Senate had confirmed five of Mr. Bush’s appellate judges — although one was a Clinton pick whom Mr. Bush had renominated — and 13 of his district judges. By contrast, Mr. Obama has received Senate approval of just two appellate and four district judges.
Those numbers could rise rapidly. Four appellate and four district court nominees have cleared the Senate Judiciary Committee and are waiting for floor votes. Democrats have accused Republicans of stalling them by raising obstacles to votes on uncontroversial nominees. Republicans counter that Democrats, too, used procedural tactics to slow or block some Bush nominees.
The story notes that the Administration had to focus on an early Supreme Court nomination and has been hampered by the lack of a confirmed head of the Office of Legal Policy. It also raises the possibility that turnover in the White House Counsel’s office will slow things even more.
The Brookings Institution’s Russell Wheeler has a useful report on the pace of nominations through October 20. He concludes:
Probably the two most striking findings about this early comparative look at the current and most recent administrations’ early nominees are: 1) the relatively paucity of Obama administration nominees, and 2) the delay in full Senate action on those nominees—quick Judiciary Committee hearings but little more. It is too soon to say whether these early developments presage an administration with a less energetic policy on judicial nominations than its predecessor; greater difficulty in identifying qualified candidates, especially non-judges; or a Senate that will not confirm large numbers of nominees because of unchallenged minority delaying tactics—or some combination of all three.
Even though Senate Democrats have a filibuster-proof majority, some argue that the low number of confirmations is primarily due to Republican delay tactics. This argument is featured in the LA Times as well. Yet as the data show, the percentage of appellate nominations confirmed by this point is about the same.
Doug Kendall accuses Senate Republicans of a “new form of obstructionism.” This would be true if by “new” Kendall meant “less obstinate than their predecessors.” During the Bush Administration, Senate Democrats adopted the unprecedented tactic of filibustering appellate judicial nominations, including several individuals who were extremely well qualified. (See also here.) While Senate Republicans have hardly greased the skids for Obama’s nominees, they have yet to do anything comparable. Ed Whelan further rebuts Kendall’s misleading account here, here, and here. (See Kendall’s rejoinders here and here.)
In the end, the primary reason for the slow rate of judicial confirmations is that neither the Obama Administration nor the Senate leadership has made judicial nominees a significant priority. The White House has been slow to make nominations, and the Senate leadership has made little effort to push those nominated through. Further, for all his talk of bipartisanship President Obama has yet to reciprocate President Bush’s decision to re-nominate stalled Clinton nominees, as Bush did at the beginning and end of his presidency. Like those who preceded them, Senate Republicans cling to the Senate’s blue slip tradition and seek extensive time to debate some of Obama’s nominees, yet there will be no filibuster (even if only because Republicans don’t have sufficient party discipline or the votes) — and that’s a good thing.
For some of my prior posts on confirmation history here, here, here, here, and here.
Thank you for dithering « Don Surber says:
[...] tip: Jonathan Adler, who has his [...]
November 16, 2009, 9:28 amBrett says:
How exactly is a tactic of holds on nominees “less obstinate” than public votes against cloture? This is not obvious to me.
You appear to counsel the Senate Democrats to “push the nominees through,” which would mean refusing to honor the holds that, as Wheeler notes, “most observers” believe are at the root of Senate inaction. Is a hold “less obstinate” than a vote against cloture? Not clear.
At least with votes on cloture, people go on the record and (a) acknowledge their vote and (b) generally make an argument about it. Holds are a much less public procedure, enabling individual Senators to consume the resource of time without as much cost in justification.
[RESPONSE: Holds tend to be temporary -- as they have been with President Obama's nominees -- whereas successful filibusters can permanently prevent the confirmation of a nominee who enjoys majority support (see, e.g., Miguel Estrada). I also don't know whether there is a hold on the Hamilton nomination, but Senator Reid's decision to file for cloture will produce a confirmation vote whether or not a Republican Senator seeks to place a hold on it. In any event, I oppose anonymous holds, and oppose even non-anonymous holds if used to obstruct or needlessly delay a confirmation. I do, however, think one can distinguish temporary holds from other means of obstruction. -- JHA]
November 16, 2009, 9:36 amSunTzu's Nephew says:
Finding leftists to destroy the US is hard work, man…
November 16, 2009, 9:46 amDavid Welker says:
Seriously Adler,
Do you really think it is intellectually defensible to give the Republicans credit for not engaging in filibusters on judicial nominees when such filibusters most certainly could not be sustained?
Do you think John McCain, Lindsey Graham, Olympia Snowe, or Susan Collins could support filibusters after joining the Gang of 14 intervention which unfortunately came into being to thwart the so-called “constitutional option” or “nuclear option”? (As an aside, for the record, I supported the “constitutional option” at the time and still support it.) These Senators have tied their hands, and do not really have the ability to support a judicial filibuster, except under “extraordinary circumstances” which will typically be lacking.
Give me a break. You cannot give Republicans credit for not doing what they do not have the power to do. Especially when they go to the Nth degree to obstruct in the ways that are actually feasible.
On the other hand, maybe the Libertarian Party deserves credit for not engaging in filibusters on judicial nominees too. Hey, maybe you personally deserve credit for not filibustering. And so do I. We should definitely pat ourselves on the back. Oh, and for the record, I deserve even more praise than the Republican Party. I have obstructed even less than Republicans. I haven’t issued a single blue slip in order to obstruct a nominee.
[RESPONSE: Seriously Welker, try and read more carefully. As dcp notes below, I'm "not giving Senate Republicans credit for not filibustering nominees" but "merely pointing out that it is absurd for another writer to call their confirmation efforts obstructionist on a new and unprecedented level, when recent history shows that such accusations are complete and utter nonsense." Insofar as Republicans are using blue slips or other obstructionist tactics, they are wrong to do so. I also believe that, so long as those Republicans who oppose the Hamilton nomination have an opportunity to explain their views on the floor, the entire Republican caucus should vote in favor of cloture. -- JHA]
November 16, 2009, 10:08 amPaul Horwitz says:
Jonathan, I have a post up on this story at Prawfsblawg, and as you’ll see, I’m hardly in total agreement with the drift of the story and am quite sympathetic to the possibility that the administration rightly believes that other things are more important than judges. But in fairness, Bush hardly renominated all the stalled Clinton nominees (and of course was under no obligation to nominate any). And your commenters are right, I think, that it is not clear that filibusters are “worse” than blue-slips and other sub rosa delay tactics. I don’t favor filibusters in their modern form — I think a filibuster should actually involve the potential political costs involved in having to physically speak up and clog Senate business. But filibusters even in their modern form are still more public, and involve more public “deliberation,” than simply delaying the consideration of a nominee with little in the way of public discussion, if any. Finally, while I think you have every right to focus on the agency of the White House and Senate leadership in this issue, you say very little about the agency of the Republican Senators. Are they delaying judicial nominees, and why? Is it based on the merits of individual nominees, on a general desire to slow down the process, or something else? You say the White House is not pushing on these issues, and I think you’re right, but it seems only fair to talk about the other side and whether it is pushing back, and whether it should be.
[RESPONSE: Paul -- While I oppose both blue slips and filibusters of judicial nominations, I think they are easily distinguishable, and ample basis for believing the latter is a greater form of obstruction, as I argued in this post. The former is a decades-old vestige of Senatorial prerogative, based on the idea that home-state Senators should have a say in judicial nominations from their states. The latter is a tool of minority obstruction. Blue states have been used by various Senators of both parties for decades. The latter was never used to block an appellate nominee until Senate Democrats used it against several of President Bush's nominees. As for the Republicans, it's not clear to me how much push back there actually is. Sure, as I note above, Republicans have not made it easy, but confirmations of those nominated appear to be proceeding apace. Moreover, it appears that some of the claims made against Republicans are simply false. Finally, I agree the lack of greater obstruction may be due to the numbers, which is why I have not praised their conduct, merely noting instead the absurdity of claiming they are engaged in unprecedented or an otherwise remarkable degree of obstruction. JHA]
November 16, 2009, 10:26 amdcp says:
He’s not giving Senate Republicans credit for not filibustering nominees, he’s merely pointing out that it is absurd for another writer to call their confirmation efforts obstructionist on a new and unprecedented level, when recent history shows that such accusations are complete and utter nonsense.
I don’t care what the numbers in the Senate are, you can’t run around screaming foul over policies and procedures you once embraced to a much greater extent.
November 16, 2009, 10:58 amDavid Welker says:
dcp,
I think it is conceptually sensibly to say that their use of the procedures that are actual options available to them is unprecedented.
But you know, I don’t really blame Republicans as much as I blame Democrats. They should simply change the Senate rules that allow the Republicans to engage in obstruction, starting with the filibuster.
November 16, 2009, 11:09 amPaul Horwitz says:
dcp, I appreciate your view of Jonathan’s post. I do think he both makes your point and, in arguing that the Republicans have not done anything “comparable” to a filibuster, is making a qualitative judgment and not one about whether they have engaged in “unprecedented” tactics. As for the word “unprecedented” itself, I’m perfectly prepared to accept its use for the sake of argument, but as with any use of precedent, much depends on whether you read prior cases as applying or not. Filibusters may have been unprecedented for judicial nominees (I cannot say one way or the other and am prepared to accept the point), but they were not unprecedented for other advice-and-consent nominees of the executive branch. If you treat that as the relevant comparison point, then extending the action to judges was not unprecedented; if you treat judges as unique, whether for reasons of lifetime tenure or for some other reason, then it was. I’m not sure how much turns on this point, which is not the same thing as taking the position that fililbustering judges is a good thing. I think it’s constitutional but that’s quite a different matter.
November 16, 2009, 11:24 amegd says:
The right to filibuster is consistent with the solemn constitutional duty that every U.S. Senator has along with the right to advise and consent on presidential nominees. It is also a long established Senate tradition that has helped ensure that the most qualified nominees sit on the Federal Bench. No matter which party controls the Congress or the White House, no president or the majority leadership in Congress should be given the right to upset the checks and balances that are crucial to our Democracy.
Federal judges are appointed for life terms and their rulings shapeour daily lives. Accordingly, it is not unreasonable for rthe minority in the Senate –whether Democratic or Republican – to preserve their freedom and right to open debate on any judicial nominee that the president submits. It is all the more imortant today, because of the likelihood of one or more anticipated vcancies on the U.S.
The Congress and President are suffering from unbounded arrogance of power. They are so arrogant that they want to fundamentally change the rules of the Senate so that a single political party in power holds total and absolute control of all three branches of government.
To that end, the President and the majority party want to end the Senate’s right to filibuster in order to pack the federal courts with the extreme fringe, putting at risk the rights and liberties our nation has fought for and protected for centuries. Their ultimate motive is to create a Supreme Court that will not act as an independent branch, but instead wag its tail at the Congressional leadership’s every beck and call.
When the Founding Fathers established the Senate, they did so to protect the rights of the minority. At the time, it was to protect the rights of the smaller states against the will of the larger states by granting two Senators to each state regardless of size. For the past two hundred years, those protections have served this country well and is the reason that the rights of the minority party need to be protected today by preserving the filibuster.
The role of the Senate in the confirmation of presidential nominees is a central element of our democracy. The confirmation process underscores our founding fathers’ commitment to the separation of powers and their abhorrence of simple majority rule. It provides for essential checks and balances to ensure that we remain a nation ruled by laws and not by men.
Instead of tending to our nation’s business – its burgeoning deficits, sky high unemployment, and a billion dollar a day bailout – the majority party is on a quest for absolute power. They are on a mission to trash our founding fathers’ commitment to the separation of powers and abhorrence of simple majority rule. The majority party’s power grab is all the more egregious at a time when we preach democracy around the world but seek to subvert it here at home.
The American people don’t want, nor do they need, another king. That’s why we fought a war of freedom over 200 years ago.
November 16, 2009, 11:30 amSteve says:
Just a few short years ago, Republican partisans informed us that filibustering judicial nominees was utterly unprecedented, contrary to the deepest traditions of the Senate, and quite possibly unconstitutional. Now that same filibuster is apparently God’s gift to our democracy. You really have to sit back and laugh.
November 16, 2009, 11:39 amPaul Horwitz says:
Steve, in fairness the argument Jonathan is making is that the Republicans are engaging in other delay efforts, not filibusters. I think the commenters are right that tactics and numbers rather than some deep philosophical principle are guiding this choice of strategy, and I also question whether the distinction is a strong or meaningful one, but I think the clarification is warranted on grounds of accuracy.
November 16, 2009, 11:58 amSG says:
Just a few short years ago, Republican partisans informed us that filibustering judicial nominees was utterly unprecedented, contrary to the deepest traditions of the Senate, and quite possibly unconstitutional. Now that same filibuster is apparently God’s gift to our democracy. You really have to sit back and laugh.
Can you read? I’ll copy the relevant quotes so you don’t sprain your finger scrolling up
or
November 16, 2009, 12:01 pmbyomtov says:
Frankly, it’s all nonsense. Arguing about which side is more obstructionist is foolish.
Both parties use the procedural methods available to them to block nominees they don’t like. This includes filibusters (having exactly 60 votes, counting Lieberman hardly makes for a filibuster-proof majority), blue slip rules (which, however “traditional,” have been changed regularly, especially by Hatch), and “holds,” (which I think Reid is a fool for honoring).
Just dumping it all and requiring a 60-vote majority to confirm, operating on a reasonable schedule after the nomination, would be a vast improvement.
All this procedure is nothing but a way for Senators to generate phony talking points about what they are doing.
[RESPONSE: I think the history that I've recounted at length in some of the posts above strongly support the claim that there has been what Larry Solum has termed a "downward spiral" of increased obstructionism from the mid-1980s through the Bush Administration and that Republicans -- even if only because they lack the votes -- have yet to escalate in retaliating against President Obama's nominees. -- JHA]
November 16, 2009, 12:06 pmSteve says:
Can you read? I’ll copy the relevant quotes so you don’t sprain your finger scrolling up
Can YOU read? The relevant quotes are in the comment directly above mine.
November 16, 2009, 12:23 pmOren says:
I’m just waiting for Reid to come out and say that delaying tactics are illegitimate. That would complete the story.
November 16, 2009, 12:39 pmkrs says:
FWIW, I appreciate Prof. Horwitz’s respectful engagement with the post.
Prof. Kerr had the subject of filibusters and judicial confirmations pretty well covered about a year ago.
November 16, 2009, 12:43 pmSG says:
Can YOU read? The relevant quotes are in the comment directly above mine.
No, here’s the comment above yours (emphasis added):
I don’t see any claim that the Democratic use of the fillibuster was inappropriate in that comment, do you?
November 16, 2009, 1:12 pmSarcastro says:
Welp, looks like an old-fashioned read-off. Tradition dictates Hemingway at dawn, followed by a multiple-choice reading comprehension test.
November 16, 2009, 1:28 pmegd says:
Sorry, actually I was quoting/paraphrasing from this.
So remember, just a few short years ago, Democrats told us that the filibuster for judicial nominees was historically sound, in light with the deepest traditions of the Senate, and exactly what the framers intended. Now, that same filibuster is apparently the work of the Devil.
You really have to sit back and laugh.
November 16, 2009, 2:08 pmSteve says:
Sorry, actually I was quoting/paraphrasing from this.
Nice to know that you don’t actually believe that pathetic drivel.
November 16, 2009, 2:26 pmJoe says:
unprecedented tactic of filibustering appellate judicial nominations
Republicans used other methods to delay nominations, Sen. Helms infamous for repeatedly holding up Fourth Circuit judges. In practical effect, there is nothing “unprecedented” about Democrats filibustering (even there, I read that Breyer was filibustered for a time when he was up for a lower court position).
Brett is on point here. And, to be honest, I find it a bit dishonest to frame it as if the Dems are doing something so unique. The minority, sometimes single senators, have always in some fashion had the power to block, including judicial nominees in some fashion. Senatorial courtesy respected the will of single state senators, for example.
Let’s be honest here, okay? Both sides used such tactics. We debate the split but let’s be fair here. As to the delay, lots of stuff is going on. What big things did Bush have to worry about until September akin to the economy, two major overseas conflicts and a Supreme Court nomination?
November 16, 2009, 2:27 pmTweets that mention The Volokh Conspiracy » Blog Archive » Where Are the Judges? -- Topsy.com says:
[...] This post was mentioned on Twitter by Daniel Burton, andrew. andrew said: The Volokh Conspiracy » Blog Archive » Where Are the Judges?: The Volokh Conspiracy · Home · About · E-Mail Pol.. http://bit.ly/4uSGej [...]
November 16, 2009, 2:37 pmegd says:
Of course not, it’s called satire.
I fully support the right of the majority party in the Senate to set the rules for the method of approving nominees from the executive.
I also fully support the minority party politicizing the issue, or refusing to change the rules back when the tables are turned.
However, rhetorically speaking, the Democrats shouldn’t complain too much about Republicans stalling Obama’s nominees (those few that have been presented). The Democrats took some unprecedented moves when they were the minority party to stall Bush’s nominees.
November 16, 2009, 3:12 pmDonald says:
I’m interested in the unfilled AAG-OLP position (in why it’s unfilled, not in filling it). Is someone in the Senate blocking Christopher Schroeder?
Google suggests that gossip suggests that Nelson and/or Specter (???) are blocking Dawn Johnsen. But a similar search for Schroeder brings nothing.
There’s something dissatisfying about the secret prerogatives of individual senators. Has a very pre-17th Amendment flavor to it.
November 16, 2009, 3:34 pmObama slow on judicial nominations - Orange Punch : The Orange County Register says:
[...] Jonathan Adler over at the Volokh Conspiracy, notes that the Obama administration has been much slower nominating federal judges than the Bush administration was at a comparable point in time. As the NYT has also noted, by this [...]
November 16, 2009, 6:57 pmMark Field says:
You qualified this very carefully to make sure it was accurate, but I fail to see any distinction between filibustering a SCOTUS nominee and filibustering an appellate court nominee. The “novelty” of the tactic isn’t all that apparent, nor is the “blame” for engaging in it.
Correct me if I’m wrong, but weren’t the Dems forced to use the filibuster because the Repubs wouldn’t honor holds? If that’s correct, it seems that Harry Reid is much more respectful of Senate tradition than the post would suggest. That said, I agree with those who prefer a filibuster to a “hold”, as the former is more public.
Perhaps the best way to solve the problem is transfer the advise and consent role to the House.
[RESPONSE: I've addressed these points before. Prior to 2001, there had never been a filibuster of a judicial nominee, for any court, who enjoyed majority support. The only one was for Associate Justice Abe Fortas' elevation to Chief Justice, a nomination I discussed here. As for the second claim, consider yourself corrected. Among those filibustered were Priscilla Owen for the U.S. Court of Appeals for the Fifth Circuit and Miguel Estrada for the U.S. Court of Appeals for the D.C. Circuit. Both Texas Senators supported Owen's confirmation, so both of her blue slips were returned with favorable recommendations. As for Estrada, there are no "home state" Senators for the D.C. Circuit, so the blue slip policy is completely inapplicable. -- JHA]
November 16, 2009, 7:20 pmMark Field says:
Fair enough as to Owen and Estrada, but the implication (perhaps unintended) of your response is that in other cases holds were not honored. Is that accurate?
I’m not much impressed by the distinction you’re making regarding the Fortas case. That filibuster was one by conservatives of both parties against a liberal justice. Whether he had majority support on an up or down vote will never be known because he was never given one. Voting not to close debate isn’t the same thing.
[RESPONSE: I don't think the filibusters of any of Bush's nominees, with the possible exception of the Michigan nominees, were due to a failure to honor blue slips or holds. Also, there are two other distinctions with Fortas: He didn't have majority support, so would have lost the straight up-or-down vote, and there were non-ideological bases for opposing him (ethical concerns that ultimately prompted his resignation). JHA]
November 16, 2009, 9:36 pmMark Field says:
BTW, Brian Tamanaha has a post at Balkinization arguing that liberals should unilaterally disarm on this issue.
[RESPONSE: It's an interesting post. My initial reaction: President Obama should be entitled to nominate qualified judges that conform with his preferred judicial philosophy, and he should see his nominees confirmed. This is how I believe principled conservatives should respond to a Democratic President. Further, I don't think the consideration of judicial philosophy in making nominations necessarily entails "rigid ideological screening." Any process that yields appellate judges like Posner, Easterbrook, Kozinski, and Sentelle is anything but "rigid." JHA]
November 16, 2009, 9:38 pmbyomtov says:
Prior to 2001, there had never been a filibuster of a judicial nominee, for any court, who enjoyed majority support.
Why filibusters are (were) bad because they were “unprecedented” is not obvious. Procedural rules are procedural rules, and using one rule instead of another hardly seems like some sort of offense against common decency.
And the business about majority support is meaningless. After all, if a nominee doesn’t enjoy majority support all you have to do is let it come to a vote.
November 16, 2009, 9:57 pmMark Field says:
Thanks.
November 16, 2009, 10:45 pmDave N says:
I said before, when the Democrats were filibustering Republican judicial nominees, and I say it now: Judges should not be filibustered. Requiring a majority provides a check on the executive.
Totally unrelated, Mark Field was 100% accurate about the length of this post (see his comment about the length of THIS post on the Reinhardt thread). Way to go, Mark!
November 16, 2009, 11:01 pmMark Field says:
Just to preempt geokstr, I’ll mumble something about blind pigs and acorns. Oh, and that elaborate statistical analysis. Yeah, that too.
November 16, 2009, 11:38 pmgeokstr says:
I think the Obama administration has its priorities right where it wants them.
Trashing the constitution is hard work, and lots of effort and resources has to be put into that first. This crisis, which took decades for the left to foment, is too good to waste but no telling how long the window will be open.
It will take a long time for the court challenges to these constitutional work-arounds and makeovers to wend their way up through the Judiciary food chain, particularly since the Justice Department is in sympathetic hands. There will be plenty of time to put the rubber stamps in place after the heavy reconstruction work is done on the constitution first.
Heck, there may even be time to get something that looks and stinks a lot like ACORN but is named something different heavily involved in the election and census processes so that the results in 2010 and 2012 will provide them with more consequences that they will find useful to the task at hand.
Hey, they won, remember?
November 16, 2009, 11:51 pmgeokstr says:
I thought you could take a joke (there was a smiley on that comment about statistical analysis.) Guess I was wrong about you having a sense of humor. That’s a mistake I won’t make again.
I suspected that only SirCastro and other members of the left were permitted to use sarcasm, and it appears I was correct.
And blind pigs? What the hell is that all about?
November 16, 2009, 11:58 pmDavid Welker says:
Fine fine. I take back the point that you were giving Republicans credit. And I agree with you. I should have interpreted you more sympathetically. I think whether one calls something unprecedented or not depends on how you look at things. If you are talking about general level of obstruction, I agree with you. There is nothing as obstructionist as filibustering. But, if you are talking about unprecedented use of tools other than the filibuster, then it is conceptually sensible and not absurd to say that those tools are being used in an unprecedented manner.
A final note. I don’t have problem with obstructionism or any other tactics that are within the rules. So, I think Republicans are within their rights to engage in whatever obstruction they wish, although it is perfectly reasonable for voters to punish them for it as well. The issue is that the rules need to be changed.
November 17, 2009, 12:28 amPaul Horwitz says:
Thanks for the thoughtful responses, Jonathan.
November 17, 2009, 9:42 amMark Field says:
My comment WAS a joke (obviously not a good one). The reference to blind pigs involves an old saying: “Even a blind pig sometimes finds an acorn.” Meaning my comment about the length of Prof. Adler’s post was lucky.
I did get that you were not serious in your comments and was trying to respond in kind.
November 17, 2009, 10:36 amBrian K says:
a long time ago, when we had these debates during bush’s presidency i did a few calculations.
I had counted that senate democrats blocked 10 out of the 218 nominations during bush’s first term. (7 were renominated and was appointed via a recess appointment within the next year.)
In contrast, senate republicans blocked 45 out of the 70 nominations during clinton’s final year in office.
granted, this takes into account all methods by which one party prevents an up or down vote on a nominee, not just filibusters. however, this displays the incredible amount of disingenuity present in these debates. why the focus on only filibusters? because it is the only metric in which republicans come out ahead. the only thing that is unprecedented is the rate at which senate democrats didn’t block bush’s nominees.
November 17, 2009, 10:38 pmdevil's advocate says:
Dave N
Man, you make a guy work for his snide comments, there is no THIS [it is] THERE
I would say statistics as well as an earlier commentor with whome I agree suggest that the length of attention Jon pays to his posts is well abouve the statistical norm as well. I for too appreciate that his posts are not hit and run. From the polite concessions of some commentors, I think there are actually more than two of us who appreicate this. Another thread that distinguishes Volokhdom for disagreements that aren’t disagreeable [to read].
and Brian K.,
while I think I am prone to Jon’s arguments on the extent of obstructionism, I think your attention to pots calling kettles black is useful but the metrics don’t match well. The current crop of comparisons however, rightly looks at the first 10 months of the Bush and Obama presidency. I don’t have the numbers so I don’t want to speak presumptively, but my impression is that a somewhat equal percentage of Bush nominations were unavailing in his final year in office.
You may have done the research at a time when you only had Bush’s first term to work with, so I’m not saying it was deliberately oranges and apples, but I do think we should get our judicial fruit straight here and someone probably knows the numbers for Bush’s final year.
Can you expound on your methodology. Was this nominations made in the final year, considered, or nominations outstanding during the final year of the Clinton presidency.
Thanks,
your namesake (when not on Volokh)
Brian
November 19, 2009, 9:44 amdevil's advocate says:
And on a totally unrelated subject, can someone explain how the editting timer works. I was trying to fix my syntax and a couple spelling errors and sudeenly the window went away and the edit option is no longer available on my post. Do you have to get this in in 5 minutes or could we at least storm the cyber Bastille with our pitchforks and ask for 15 or 30.
Of course then I’ll complain when I violated that time limit. After all, isn’t it a natural right to fix your comments no matter how long ago you screwed them up. But I’m open to compromise here.
Maybe the time limit is important to prevent someone significantly changing the substance after others have commented. I think this could be handled by an engine that simply keeps links to older versions of comments so if some intellectual sleight of hand is under way, that can be called out, rather than dooming the rest of us to be forever embarrassed by our typos and the beautiful rhetorical turns we forgot to put in before we clicked post.
November 19, 2009, 9:55 amThe Volokh Conspiracy » Blog Archive » Who’s to Blame for Nomination Bottleneck? says:
[...] President Obama entered office with a nearly unprecedented opportunity to remake the federal courts, but he has yet to take advantage of it. The President has only made 38 judicial nominations, and the Senate has only confirmed 14. Who is to blame for the slow pace? It depends on who you ask — and when you ask them. (My own take can be found here and here.) [...]
February 9, 2010, 12:02 pm