- The Washington Times - Wednesday, May 11, 2005

The nation is now deep into its eleventh year during which the membership of the U.S. Supreme Court has not changed. That time span, which dates to August 1994, is the longest such period since the 1820s. Throughout the latter part of this period, beginning in early 2003, the Democratic minority party in the U.S. Senate has been waging an unprecedented filibuster campaign to deprive up-or-down votes for 10 judicial nominees who would otherwise be easily confirmed by majority vote to the federal circuit courts of appeal.

These appellate courts, where about 165 judges preside within 12 geographic circuits, including the nation’s capital, occupy the federal judicial level immediately below the U.S. Supreme Court. The circuit courts hear appeals from the nation’s 94 district courts, where about 670 U.S. district judges hold trials involving federal issues, both civil and criminal.

The Democrats’ judicial-filibuster campaign has been unprecedented in scope, intensity and duration. Not surprisingly, therefore, it has achieved its primary goal, which has been to eviscerate President Bush’s electorally transmitted constitutional prerogative to shape the federal courts. Indeed, during their first terms in office, not one of all the other post-World War II presidents has been comparably constrained from fulfilling this constitutional mandate at the circuit-court level. Never before has the White House’s opposition party in the Senate systematically deprived up-or-down votes for circuit-court nominees in the manner that the Democrats have throughout the first term of George W. Bush, particularly through their unprecedented use of the filibuster since early 2003.

On his dalythoughts.com blog, Gerry Daly, whose results were recently highlighted in the Economist magazine, has elucidated the postwar record. With minor adjustments explained below, here are Mr. Daly’s provocative findings.

During the first complete two-year Congress of their presidencies, postwar presidents achieved the following confirmation rates for their circuit-court nominees: Truman (80th Congress; 3/3: 100 percent); Eisenhower (83rd; 12/13: 92.3 percent); Kennedy (87th; 17/22: 77.3 percent); Johnson (89th; 25/26: 96.2 percent); Nixon (91st; 20/23: 87 percent); Ford (94th; 9/11: 81.8 percent); Carter (95th: 12/12: 100 percent); Reagan (97th: 19/20; 95 percent); G.H.W. Bush (101st; 22/23: 95.7 percent); Clinton (103rd: 19/22: 86.4 percent); G.W. Bush (107th; 17/32: 53.1 percent).

Thus, for the first complete two-year Congresses of the 10 postwar presidencies preceding George W. Bush’s, the circuit-court confirmation rate averaged 91.2 percent. For Mr. Bush, it was 53.1 percent. Moreover, before George W. Bush, no president’s confirmation rate during his first complete Congress fell below 77 percent, which is nearly 50 percent (and 24 percentage points) higher than Mr. Bush’s confirmation rate. It is also worth noting that the three nominees returned by Mr. Clinton’s first Congress were confirmed during his second, effectively raising his first-Congress rate to 100 percent. And if we exclude Mr. Bush’s two circuit-court nominees who were appointed to the federal judiciary by Mr. Clinton and nominated for the circuit-court bench by Mr. Bush as an unrequited, magnanimous gesture to the Democrats, then Mr. Bush’s first-Congress confirmation rate falls to 50 percent (15/30), which is half Mr. Clinton’s first-Congress effective rate.

Let’s now aggregate the data for a president’s first four-year term, while making minor, necessary adjustments (e.g., folding the 79th Congress into the first term of Truman, who succeeded Roosevelt in April 1945; using 1965-1968 as Johnson’s first term; and ignoring Ford, who served less than 2.5 years). Then, the first-term confirmation rates are the following: Truman (10/11: 90.9 percent); Eisenhower (23/26: 88.5 percent); Kennedy/Johnson, 1961-1964 (24/29: 82.8 percent); Johnson, 1965-1968 (37/39: 94.9 percent); Nixon (38/41; 92.7 percent); Carter (56/61: 91.8 percent); Reagan (33/42: 78.6 percent); G.H.W. Bush (42/54: 77.8 percent); Clinton (30/42: 71.4 percent); G.W. Bush (35/66: 53 percent).

Thus, since World War II, for the nine four-year, first-term presidencies that preceded George W. Bush’s, the circuit-court confirmation rate averaged 85.5 percent. For Mr. Bush’s first term, the rate was a relatively dismal 53 percent.

Finally, throughout the same nine postwar, first-term, four-year presidencies that preceded George W. Bush’s, Congress returned a total of 46 circuit-court nominations to the president upon adjournment. Those 46 averaged five per four-year term over 36 years. During Mr. Bush’s first four-year term, 30 circuit-court nominations were returned by Congress.

This is a record of unprecedented obstructionism that simply cannot be permitted to continue through systematic filibustering.

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