In the Rose Garden on June 4, 2013, President Barack Obama announced three nominees to the U.S. Court of Appeals for the D.C. Circuit. In unveiling the nominees, Obama criticized Senate Republicans, accusing them of consistently obstructing his court picks.
While Obama acknowledged that Democrats "weren’t completely blameless when I was in the Senate," he added that today’s Republican opposition to his judicial picks "is unprecedented."
"Time and again, congressional Republicans cynically used Senate rules and procedures to delay and even block qualified nominees from coming to a full vote," Obama said. "As a result, my judicial nominees have waited three times longer to receive confirmation votes than those of my Republican predecessor … This is not about principled opposition. This is about political obstruction."
Is Obama really correct that his judicial nominees "have waited three times longer" than those nominated by President George W. Bush?
The answer hinges on how you define the phrase "to receive confirmation votes."
First, a civics reminder. The president is responsible for nominating judges, and the Senate is responsible for confirming them. Once a nomination is made, it goes to the Senate Judiciary Committee. Once it clears the committee, it goes to the Senate floor. By the book, the final confirmation vote only requires a majority, but in recent years, senators have increasingly threatened to filibuster -- that is, block -- judicial picks. This forces the Senate to first vote on ending the filibuster threat, a vote that requires 60 votes, not 51.
The fact that there’s a two-step process -- first moving from nomination to committee, and then from committee to a confirmation vote -- has led to contradictory trends on nominee delays. Bush’s nominees tended to get delayed before winning committee approval, while Obama’s have more often been delayed on the floor.
The Congressional Research Service, a nonpartisan arm of Congress, published a thorough analysis of judicial nomination delays on May 2, 2013. Here are some of the highlights.
From nomination to confirmation
Measured one way -- from nomination to confirmation -- Obama’s claim is off base.
According to CRS, the average number of days from nomination to confirmation for first-term circuit court nominees -- which include the D.C. Circuit -- was 240.2 for Obama. That was shorter than the 277 days faced by the nominees of George W. Bush. (Obama’s waits were, however, longer than for presidents George H.W. Bush, Reagan and Clinton.)
Using the median wait, rather than the average wait, Obama’s nominees did face slightly longer delays than Bush’s did -- 225.5 days for Obama compared to 216 days for Bush. But even that was nowhere near the three-times-longer figure Obama cited.
Obama was on safer ground regarding nominees to district courts, which are the trial courts one level below circuit courts. Obama nominees waited an average of 221.8 days, which was 42 percent longer than Bush’s nominees waited. Still, this isn’t three times as long. (Using the median showed essentially the same pattern.)
From committee approval to confirmation
Where Obama has a point is if you measure the time from the point of committee approval to confirmation -- in other words, the period when the nomination is on the Senate floor, where it can be filibustered.
For an Obama circuit court nominee, the average wait from committee approval to confirmation was 138.5 days -- almost four times the duration under George W. Bush, which was 35.3 days. The median waits were similarly divergent: Obama’s nominees waited 131.5 days, compared to 18 days for nominees of George W. Bush. (Just to show how slow the process has become, George H.W. Bush's nominees waited just 7.8 days.)
The same pattern held for district court nominees. For Obama, the average number of days was 98.5, compared to 34.9 days for George W. Bush -- about three times as long. The median figures were similar as well -- 91 days for Obama, 18 days for Bush.
A White House spokesman, Eric Schultz, confirmed that Obama was talking about time spent on the floor after committee approval, and he argued that this is the fairest measurement.
Schultz argued that it’s only fair to start measuring once all the preliminary requirements are done, including the paperwork, the rating process by the American Bar Association, the scheduling of hearings, the submission of senators’ written questions. Each of these steps, he said, could easily produce delays for logistical reasons rather than political opposition.
We asked three academic experts on judicial nominations whether they agreed with Schultz’s preference for the committee-to-confirmation measurement, but we failed to secure a consensus. Paul Finkelman, a law professor at Albany Law School, said he thought the White House’s favored measurement was better, but Richard Painter, a law professor at the University of Minnesota who worked in the White House counsel’s office under George W. Bush, argued that measuring the full time period was preferable because committee tactics can "include secret holds, delayed hearings, delayed votes and more."
And Carl Tobias, a law professor at the University of Richmond, said that while he thinks the White House’s argument is reasonable, Obama should have been specific about the measurement he was using in his remarks -- something he could have done easily by saying, "My judicial nominees have waited three times longer on the floor to receive confirmation votes than those of my Republican predecessor."
Meanwhile, Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst, created an "index of obstruction and delay" in a paper published a decade ago in Judicature Journal. His aim was to come up with a single number that measured both obstruction (that is, unsuccessful nominations) and delay (taking longer than 180 days from nomination to confirmation). Goldman has found that the index for Obama’s circuit court nominations was 0.9524, the highest he’s ever recorded. In a comparable period -- 2003 to 2004, when Bush was president and the GOP controlled the Senate -- the index was significantly lower, 0.6176.
Still, Goldman told PolitiFact that his index "does not address the three-times-as-many claim" that we are checking here.
Obama said his judicial nominees "have waited three times longer to receive confirmation votes than those of my Republican predecessor." That’s true if you count from committee approval to confirmation, but not if you count the full period from nomination to confirmation. As it turns out, the average wait for George W. Bush’s circuit court nominees was actually longer from nomination to confirmation.
Because Obama didn’t specify the measurement he was using -- and because an alternative number exists that runs counter to his claim -- Obama has essentially cherry-picked a figure that puts his situation in the most sympathetic light. On balance, we rate his claim Half True.
White House, remarks by the president on nominations to the U.S. Court of Appeals for the District of Columbia Circuit, June 4, 2013
Congressional Research Service, "President Obama’s First-Term U.S. Circuit and District Court Nominations: An Analysis and Comparison with Presidents Since Reagan," May 2, 2013
United States Courts, tally of judicial vacancies, accessed June 6, 2013
Washington Post, "Obama to name two female lawyers and an African American federal judge to U.S. appeals court in District of Columbia," June 4, 2013
Washington Post, "Obama says GOP obstruction of nominations is ‘unprecedented.’ What if he’s right?" June 4, 2013
USA Today, "Judicial nominations for recent presidents," Nov. 28, 2012
Huffington Post, "Obama Judicial Vacancies Continue To Rise In Second Term, Face Issues," April 5, 2013
FactCheck.org, "Obama’s Judicial Juggling," June 5, 2013
PolitiFact, "Is Barack Obama trying to 'pack' the D.C. Circuit Court of Appeals?" June 5, 2013
Email interview with Paul Finkelman, law professor at Albany Law School, June 6, 2013
Email interview with Richard Painter, law professor at the University of Minnesota, June 6, 2013
Email interview with Carl Tobias, a law professor at the University of Richmond, June 6, 2013
Email interview with Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst, June 6, 2013
Email interview with Eric Schultz, White House spokesman, June 6, 2013
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