Right-wing media continue to deny that President Obama's judicial nominees have faced unparalleled obstruction from congressional Republicans, and is mischaracterizing the legal philosophies of those nominees.
FoxNews.com contributor John Lott not only misled on the overwhelming hurdles President Obama's nominees have faced, he also rather bizarrely branded one nominee as “controversial,” even though his legal opinions are based on well-established Supreme Court precedent.
From Lott's October 16 column:
The Senate Judiciary committee will vote on either Wednesday or Thursday whether to confirm Robert Wilkins, President Obama's nominee to the prestigious D.C. Circuit Court of Appeals -- the court often referred to after the Supreme Court as the “second highest court” in the country.
President Obama has spared little rhetoric in threatening Republicans should they dare defeat or delay Wilkins' nomination. When Wilkins was nominated in June, Obama accused Republicans of being “cynically” engaging in “unprecedented” obstruction of judicial nominations.
Democrats claim that any fair consideration would guarantee Wilkins' quick confirmation. After all, as they point out, Wilkins was quickly confirmed as a District Court judge in 2010 “without opposition.”
But it might not be such smooth sailing, for after getting on the bench, Wilkins has made a number of controversial rulings -- recently striking down Texas' voter photo ID law and upholding aggregate campaign finance donation limits.
The president and other Democrats complain that Obama's nominees are suffering the most difficult confirmations ever. Many newspaper articles agree, such as in the New York Times, USA Today, and the Congressional Research Service.
But, these numbers are fundamentally flawed.
These studies don't look at what finally happens to nominees, only what happens at some arbitrary cut-off date, such as last fall or at the end of a president's first term.
In reality, many of the longest confirmation battles involve nominations made during a president's first term and not finished until some time during his second term.
A president's decision to make nominations late in a congressional cycle can also strongly influence the results.
Actually, President Obama has little to complain about.
But As Lott himself acknowledges, numerous analyses (including one by the non-partisan Congressional Research Service) have shown that President Obama's “rhetoric” is true -- his nominees have been blocked at unprecedented levels. Lott dismisses these studies by highly reputable sources because supposedly their “numbers are fundamentally flawed,” a bold claim from a source whose research on gun violence has been repeatedly and seriously discredited.
Lott also mysteriously concludes that “when President Obama was a Senator, Democrats gave George W. Bush's Circuit Court nominees much tougher confirmations.”
This claim is highly questionable. Although both Republicans and Democrats have engaged in filibusters to block judicial nominees, Democrats typically use this tactic for truly controversial nominees. As The Wall Street Journal has reported, President Obama's mainstream and bipartisan-supported nominees are far more likely to be filibustered than were George W. Bush's:
A recent study by the nonpartisan Congressional Research Service shows that even noncontroversial judicial appointments--those that ultimately got bipartisan support and easily passed the Senate--are having to wait longer for confirmation across the past four presidencies of both parties.
As Republicans note, Democrats set the stage for today's problems by filibustering George W. Bush's judicial nominees. Now the problem has grown worse in the Obama years, as Republicans turn the tables and bottle up Democratic nominations.
The study found that 35.7% of George W. Bush's noncontroversial circuit-court nominees had to wait more than 200 days for confirmation--up from 22.2% for Bill Clinton. During the Obama presidency, that percentage has soared to 63.6%. No Obama circuit-court nominee has been confirmed in less than 100 days.
What's more, previously only more-sensitive appeals-court nominations were filibustered; now it's also less-sensitive district-court nominations.
As the WSJ notes, this behavior on the part of Senate Republicans has left almost 10 percent of the federal judiciary seats vacant. Not only that, this obstructionism has prevented highly-qualified jurists from being confirmed.
One such jurist is Robert L. Wilkins, who Lott characterizes as “controversial” because he voted to strike down Texas' dubious voter ID law and to uphold aggregate campaign finance limits. Wilkins was, in fact, part of a three-judge panel that struck down the voter ID law because it “impose[d] strict, unforgiving burdens on the poor,” a disproportionate percentage of whom are black or Hispanic. George W. Bush appointee Rosemary Collyer also signed off on the opinion.
Wilkins' decision to uphold aggregate campaign finance limits is equally noncontroversial. Aggregate campaign finance limits have been a well-settled area of law, until the Supreme Court agreed to hear oral arguments in McCutcheon v. FEC on October 8. That case has been called "the next Citizen's United" because of its potential to significantly alter the landscape of election donations. Again, Wilkins was joined in the opinion by Bush appointee Janice Rogers Brown.
The possibility that Senate Republicans will block a noncontroversial nominee like Wilkins should be of concern to Lott, who elsewhere wonders: “Why are America's best and brightest lawyers having such a hard time getting to the bench?”