- The Washington Times - Thursday, November 21, 2013

Although President Obama supported Senate Democrats’ move Thursday to end what he called “reckless” Republican filibustering of his nominees, Mr. Obama told liberal supporters just two weeks ago that he was pleased with his record of judicial confirmations.

At a big-money fundraiser Nov. 6 in Dallas to benefit Democratic Senate candidates, Mr. Obama boasted to donors that his administration was making great progress in molding the federal courts to his philosophy.

“We are remaking the courts,” Mr. Obama said. “We’re actually, when it comes to the district court, matching the pace of previous presidents. When it comes to the appellate court, we’re just a little bit behind, and we’re just going to keep on focused on it.”


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On Thursday, Mr. Obama backed Senate Democrats’ ending the use of filibusters on nominees, saying “today’s level of obstruction just isn’t normal.”

“This isn’t obstruction on substance, on qualifications,” Mr. Obama said. “It’s just to gum up the works.”

The president noted that both he and Vice President Joseph R. Biden are former senators, saying they value the Senate’s role of “advise and consent” on presidential nominations. But Mr. Obama neglected to mention that, as a senator in 2006, he supported an unsuccessful filibuster of Supreme Court nominee Samuel Anthony Alito Jr. He also participated in several other filibusters of judicial nominations by Republican President George W. Bush.


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When majority Republicans threatened in 2005 to end the use of filibusters on nominations, then-Sen. Obama warned that the move would create more gridlock.

“Everyone in this chamber knows that if the majority chooses to end the filibuster, if they choose to change the rules and put an end to democratic debate, then the fighting, the bitterness and the gridlock will only get worse,” Mr. Obama said on April 13, 2005.

Partisans on both sides often “cherry pick” statistics about judicial confirmations to prove the other side is being unfair, as Mr. Obama did Thursday by saying that his nominees have waited on average 2.5 times longer for a confirmation vote than Mr. Bush’s nominees. But independent studies have shown that Mr. Obama’s record on judicial nominees is roughly comparable to both Mr. Bush and President Clinton.

The Senate had confirmed 71 percent of Mr. Obama’s nominees for federal appeals courts through Nov. 12. At the same point in the second term of President Clinton, the Senate had confirmed 68 percent of his appellate nominations. For George W. Bush, the figure was 81 percent, according to the American Constitution Society.

For all judicial nominations, Mr. Obama has had 75 percent confirmed, compared with 79 percent for Mr. Clinton and 91 percent for Mr. Bush at the same point in their presidencies.

The Congressional Research Service reported in May that Mr. Obama’s first-term district court nominees were confirmed at a rate of 83 percent. That compared with 95 percent for Mr. Bush, 86 percent for Mr. Clinton and 77 percent for President George H.W. Bush.

For appeals court nominees, Mr. Obama’s confirmation rate in his first term was higher than George W. Bush’s rate but significantly lower than Mr. Clinton, the elder Mr. Bush and President Reagan.

A study by Russell Wheeler of the left-leaning Brookings Institution at the end of Mr. Obama’s first term also found that the president was slower than his predecessors in sending nominations to the Senate to fill judicial vacancies.

“By the end of their second years, Clinton and Bush had submitted over half their nominees (60 and 55 percent, respectively); Obama had submitted 46 percent of his,” Mr. Wheeler said. “By the end of their third years, Clinton and Bush had submitted over 90 percent of their nominees, Obama slightly more than three-fourths.”

Mr. Wheeler said Mr. Bush’s judicial nominees in his first term waited longer for hearings: 101 days on average for district judges (versus 84 for Mr. Obama and 63 for Mr. Clinton); and 220 days on average for circuit judges (versus 63 for Mr. Obama and 84 for Mr. Clinton).

The American Constitution Society said Mr. Obama “has maintained a somewhat lethargic pace of nominations throughout his presidency.”

Senate Minority Leader Mitch McConnell, Kentucky Republican, said Senate Democrats engaged in “serial filibustering” of Mr. Bush’s appeals court nominees, including Miguel Estrada, whose nomination to the D.C. Circuit Court of Appeals was filibustered a record seven times.

Although there’s a long Senate tradition of filibustering legislation, before 2003, the procedural tactic was rarely used to block presidential nominations.

Democrats began using it for that purpose in earnest after they lost the Senate in the 2002 midterm elections, and control of the chamber switched back to Republicans. The case of Mr. Estrada was the most well-known example, but hardly the only one.

While raising money for Democrats in Texas earlier this month, Mr. Obama said his judicial nominees are important to bolster his agenda, referring to rulings “that ultimately are going to be made about women’s reproductive health, about how we treat our gay and lesbian brothers and sisters.”

“Those are decisions that are going to be made based on my ability to nominate qualified candidates and make sure that we can get them through,” he said.

The president is making a concerted push to nominate more female, minority and gay jurists to the federal bench. Forty-two percent of Mr. Obama’s confirmed judges are women, compared with 29 percent for Mr. Clinton and 22 percent for Mr. Bush.

Eighteen percent of Mr. Obama’s judges are black, compared with 16 percent for Mr. Clinton and 7 percent for Mr. Bush. Mr. Obama also has increased the representation of Hispanics and Asians on the bench. There have been at least seven openly gay judges appointed by Mr. Obama.

Carl Tobias, a professor at the University of Richmond law school, said Democrats “have grown weary of the filibustering.”

“It’s been over four years of a 10 percent vacancy rate in the lower courts, and that just has to stop,” Mr. Tobias said.

He said an individual senator can still place a “hold” on a nominee, a tactic that Republicans might turn to more often.

“The home-state senators will still have that leverage,” he said.