“Time and again, congressional Republicans cynically used Senate rules and procedures to delay and even block qualified nominees from coming to a full vote. As a result, my judicial nominees have waited three times longer to receive confirmation votes than those of my Republican predecessor. Let me repeat that: My nominees have taken three times longer to receive confirmation votes than those of my Republican predecessor.”
— President Obama, remarks on nominations to the U.S. Court of Appeals for the District of Columbia Circuit, June 4, 2013
This is the second of two columns looking at the rhetoric concerning the debate over the D.C. Circuit.
President Obama was so fond of this statistic that he repeated it during his ceremony announcing his three nominees to what is generally regarded as the second-most-important court in the United States. On Thursday, we analyzed Republican claims that the D.C. Circuit is underworked and does not need its full slate of judges.
Now let’s examine the president’s claim.
We became curious about this statistic when we noticed an unusual correction to the White House transcript after spokesman Jay Carney repeated this talking point at a news briefing. Carney originally said, “The duration from nomination to confirmation is three times greater in his presidency than it was in his predecessor’s.” In the correction, the word nomination was replaced by “Committee approval.”
Obama did not mention a committee vote in his remarks highlighted above, but he hinted at it by referring to Republicans blocking “qualified nominees from coming to a full vote.” Still, you have to parse the words fairly closely to glean the president’s meaning. Most listeners probably thought he was talking about the period from nomination to confirmation, not committee vote to confirmation.
Certainly, as the Senate has become more partisan in nature, judicial nominations have become more contentious.
The White House contends that focusing on the period between committee approval to confirmation is a fairer way to assess the confirmation process. Before a committee vote, paperwork needs to be submitted, an American Bar Association rating must be completed, home state senators must weigh in, the hearing must be scheduled and written questions submitted. After the nomination is sent to the floor, the argument goes, the only thing holding up a final vote is scheduling, such as minority-party dithering.
Moreover, President George W. Bush did not allow the ABA to vet candidates before nomination, which added to the time before committees could take action.
Readers may not be surprised to learn that the numbers turn dramatically in the White House’s favor when this kind of analysis is done.
To examine this claim, we relied on two sources: a Congressional Research Service report published in May and a spreadsheet provided by Russell Wheeler at the Brookings Institution, who has kept close track of the numbers. There are some differences between mean numbers and median numbers, but to keep things simple we will just focus on the mean, or average.
There are two kinds of federal judges nominated — for district courts and appeals courts. CRS calculated that it took 83.1 days for Bush’s district court nominees to get confirmed after the committee vote, compared to 153.5 days for Obama. For appeals court nominees, it was 37.5 days for Bush compared to 109.1 days for Obama. (That’s the White House’s 1:3 ratio.)
Wheeler offers a calculation from the first hearing to confirmation. That shows an average of 55 days for Bush district judges, compared to 142 days for Obamas. For appeals court judges, it was an average of 91 days for Bush and 190 for Obama.
But though Wheeler keeps these statistics, he does not think they are as relevant as simply tracking the time it takes from nomination to confirmation. “If I had to pick two things, I would pick the rate of confirmation and the time from nomination to confirmation,” he said. The White House’s focus on the period after the committee vote is “just more cherry-picking data, a process that both sides have perfected into a fine art.”
Let’s see what happens when we look at the time it took judges to go from nomination to confirmation. CRS shows that it took an average of 178.8 days for Bush’s district court judges, compared to 221.6 days for Obama’s nominees. For appeals court nominees, the results are an average of 350.6 days for Bush and 256.9 days for Obama.
Wheeler’s statistics are slightly different. He shows Bush’s district judges took 164 days, compared to 224 for Obama. For the appeals judges, the results show 317 days for Bush and 264 days for Obama.
Indeed, it took an average of 274.6 days for Bush’s appeals court nominees to get a hearing, compared to 69.6 days for Obama’s nominees, according to CRS. That’s a 4:1 ratio.
In other words, the tables were turned in the Bush years. Just as Republicans now slow walk Obama’s nominees after the committee hearing, Democrats in control of the Senate in Bush’s years slow walked Bush’s nominees before the hearing. (Wheeler also notes that Bush insisted on renominating people whose appointments had run into trouble, while Obama is more quick to cut his losses. )
In terms of rates of confirmation, overall Obama has had a better rate on appeals court judges (71.4 percent versus 67.3 percent for Bush) but a lower rate on district judges (82.7 percent versus 95 percent).
The Pinocchio Test
The confirmation process for judges has certainly become snarled with partisan politics. But the White House has seized on one factoid and blown it up into an example of “cynical” behavior by Republicans. Both sides have played this game, with varying success.
Leaving aside Obama’s confusing language at the news conference, the president’s record is not three times worse than his predecessor — except in this circumstance. But that’s really not the most enlightening statistic. Depending on how you do the math, in some ways, Obama’s record is slightly better.
Check out our candidate Pinocchio Tracker