On Tuesday, when President Obama named three new nominees to the D.C. Circuit, he asserted (and then reiterated) that his nominees have waited three times longer for confirmation than President George W. Bush’s. I’m not exactly sure where he came up with that data, but he appears to be citing the number of days between a committee vote and confirmation by the full Senate. Of course most members of the press dutifully reported the statistic, notwithstanding the fact that it is pure spin. The more relevant statistic, if one is concerned about the amount of time it is taking the Senate to consider nominees, is the time between nomination and confirmation. By this measure, President Obama is actually performing better than President Bush. A Brookings Institute study found that as of December 2012, President Obama’s Circuit Court nominees had waited an average of 240 days, while President Bush’s nominees waited 283 days.
The claim that Republicans are somehow engaged in “unprecedented” behavior with respect to nominations is especially silly in light of the genuinely unprecedented behavior of Senate Democrats during President Bush’s term (not to mention how Democrats treated Judge Bork and Justice Thomas). As the Wall Street Journal elaborated yesterday:
He might have added, but somehow didn’t, that the Senate also too often failed to do that “duty” when George W. Bush was President. You could even say that Senate Democrats invented the filibuster against D.C. Circuit nominees. Who can forget the successful Joe Biden-John Kerry effort to defeat the distinguished appellate lawyer Miguel Estrada mainly because he is Hispanic and might make it to the Supreme Court someday? And how about the denial of a vote for 918 days to Peter Keisler? Both men had majority support but weren’t confirmed because Democrats set a standard of 60 votes.
President Obama joined in on this unprecedented obstruction. As a senator, he was the first U.S. president to have supported the filibuster of a Supreme Court nominee (Justice Alito), and he voted against cloture on the nomination of the following appellate judges:
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