The Volokh Conspiracy - Wilentz Plays with Numbers:

In today's NYT, Princeton's Sean Wilentz has a letter (second item) responding to Bob Dole's op-ed on the filibuster of President Bush's judicial nominees. Republicans obstruction of Clinton's nominees "was much more 'extraordinary' than anything since," Wilentz claims. His evidence is the rate at which appellate nominees were confirmed.

between 1995, when the Republicans regained control of the Senate, and 2001, the Republican majority blocked 35 percent of President Bill Clinton's nominees to the federal appeals bench without giving them an up-or-down vote. Many did not even receive a hearing.
By contrast, President Bush has, since 2001, nominated 34 candidates to the federal circuit courts, 10 of whom the Democrats have blocked with filibusters - or just under 30 percent.

Wilentz is not comparing apples with apples here. He's comparing the rate of appellate confirmations under Clinton during a time period when there was a Senate controlled by the opposition party with the rate of appellate confirmations under Bush during a time period when the opposition party was only in control for a short time. To do this Wilentz omits data from the first two years of Clinton's Presidency when Democrats controlled the Senate. Why does he present this selective data? Perhaps because it helps him make his argument. If one looks at the overall confirmation rate of appellate nominees, his claim completly falls apart.

Bush 41 - 78 percent confirmed
Clinton - 74 percent confirmed
Bush 43 - 67 percent confirmed

President Bush has the lowest appellate nominee confirmation rate of the last three Presidents. This is even more remarkable because, of the three, President Bush has had the Senate under the control of the opposition party for the least amount of time. Democrats have controlled the Senate for less than half of Bush's Presidency. Clinton got more of his appellate nominees confirmed, even though the Senate was under opposition control for 75 percent of his Presidency.

UPDATE: On Mark Kleiman's blog, Jonathan Zasloff accuses me of being a "crybaby" and then proceeds to misrepresent this post. Daly Thoughts has a more complete response to Zasloff's post here. I'll defer to Daly's take on the numbers, and would add a few points.

First, Zasloff says I complained about comparing Clinton's first term to Bush's first term. Not so. I complained about Wilentz' omitting the first two years of President Clinton's presidency in making a comparison with President Bush. Last I checked, the first two years of a presidency are part of the first term.

Second, Zasloff accuses me and others of "cheating" by including President Bush's nominations in the 109th Congress to inflate the numbers. Not so again. Every pending circuit court nominee was originally nominated in Bush's last term, so there already included in any term-to-term comparison, and Senate Democrats have threatened to block each and every one of them.

Third, in rehashing the 2000 election, Zasloff claims Bush "proceeded with his policy agenda as if the popular vote made no differnece." This may be true in some contexts, but judicial nominations is not one of them. When President Bush announced his first twelve appellate nominees, he took the unprecedented step of renominating a Clinton nominee whose confirmation had been held up by Republicans and nominated a Clinton-nominated district court jduge for elevation to an appeals court — even though the Senate was still in Republican hands and some Republicans opposed the move.

For a more comprehensive rundown of nomination and confirmation statistics, see Daly Thoughts post here. There's also more historical data in this CRS study. The historical data confirms a point I have made consistently about judicial nominations in my posts on the subject: The politicization and obstruction of the judicial nomination process began in the 1980s, and has gotten progressively worse since then.

SECOND UPDATE & CORRECTION: In my update, I erroneously suggested Bush renominated two of Clinton's blocked nominees. Bush actually renominated one -- Roger Gregory, blocked from confirmation on the Fourth Circuit by Senator Jesse Helms. Bush also nominated Judge Barrington Parker, a Clinton nominee to a federal district court, for elevation to the Second Circuit. The text above was edited to correct the error.

	[Juan Non-Volokh, April 29, 2005 at 1:52pm] Trackbacks Wilentz Plays with Numbers: In today's NYT, Princeton's Sean Wilentz has a letter (second item) responding to Bob Dole's op-ed on the filibuster of President Bush's judicial nominees. Republicans obstruction of Clinton's nominees "was much more 'extraordinary' than anything since," Wilentz claims. His evidence is the rate at which appellate nominees were confirmed. between 1995, when the Republicans regained control of the Senate, and 2001, the Republican majority blocked 35 percent of President Bill Clinton's nominees to the federal appeals bench without giving them an up-or-down vote. Many did not even receive a hearing. By contrast, President Bush has, since 2001, nominated 34 candidates to the federal circuit courts, 10 of whom the Democrats have blocked with filibusters - or just under 30 percent. Wilentz is not comparing apples with apples here. He's comparing the rate of appellate confirmations under Clinton during a time period when there was a Senate controlled by the opposition party with the rate of appellate confirmations under Bush during a time period when the opposition party was only in control for a short time. To do this Wilentz omits data from the first two years of Clinton's Presidency when Democrats controlled the Senate. Why does he present this selective data? Perhaps because it helps him make his argument. If one looks at the overall confirmation rate of appellate nominees, his claim completly falls apart. Bush 41 - 78 percent confirmed Clinton - 74 percent confirmed Bush 43 - 67 percent confirmed President Bush has the lowest appellate nominee confirmation rate of the last three Presidents. This is even more remarkable because, of the three, President Bush has had the Senate under the control of the opposition party for the least amount of time. Democrats have controlled the Senate for less than half of Bush's Presidency. Clinton got more of his appellate nominees confirmed, even though the Senate was under opposition control for 75 percent of his Presidency. UPDATE: On Mark Kleiman's blog, Jonathan Zasloff accuses me of being a "crybaby" and then proceeds to misrepresent this post. Daly Thoughts has a more complete response to Zasloff's post here. I'll defer to Daly's take on the numbers, and would add a few points. First, Zasloff says I complained about comparing Clinton's first term to Bush's first term. Not so. I complained about Wilentz' omitting the first two years of President Clinton's presidency in making a comparison with President Bush. Last I checked, the first two years of a presidency are part of the first term. Second, Zasloff accuses me and others of "cheating" by including President Bush's nominations in the 109th Congress to inflate the numbers. Not so again. Every pending circuit court nominee was originally nominated in Bush's last term, so there already included in any term-to-term comparison, and Senate Democrats have threatened to block each and every one of them. Third, in rehashing the 2000 election, Zasloff claims Bush "proceeded with his policy agenda as if the popular vote made no differnece." This may be true in some contexts, but judicial nominations is not one of them. When President Bush announced his first twelve appellate nominees, he took the unprecedented step of renominating a Clinton nominee whose confirmation had been held up by Republicans and nominated a Clinton-nominated district court jduge for elevation to an appeals court — even though the Senate was still in Republican hands and some Republicans opposed the move. For a more comprehensive rundown of nomination and confirmation statistics, see Daly Thoughts post here. There's also more historical data in this CRS study. The historical data confirms a point I have made consistently about judicial nominations in my posts on the subject: The politicization and obstruction of the judicial nomination process began in the 1980s, and has gotten progressively worse since then. SECOND UPDATE & CORRECTION: In my update, I erroneously suggested Bush renominated two of Clinton's blocked nominees. Bush actually renominated one -- Roger Gregory, blocked from confirmation on the Fourth Circuit by Senator Jesse Helms. Bush also nominated Judge Barrington Parker, a Clinton nominee to a federal district court, for elevation to the Second Circuit. The text above was edited to correct the error.