Overcast skies cover the U.S. Capitol in Washington. (Reuters)
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.”
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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.
The nominees who had not been confirmed by the end of his first term were quickly confirmed this year. The vast majority, 85 percent, of his Circuit Court nominees made during his first term have been confirmed.
Compared to his immediate predecessors, that is an unusually high number. According to my research, the numbers were 78 percent under George H. W. Bush, 74 percent under Clinton, and 72 percent under George W. Bush.
You have to go back to Reagan to find a president with Circuit Court nominees confirmed at an even higher rate.
At Wilkins’ nomination in June, the president went on at great length about how unfairly Caitlin Halligan was treated when he nominated her to be on the same D.C. Circuit Court of Appeals.
He bitterly complained that she faced “two and a half years of languishing in limbo” and claimed her delays were “all about [Republican] politics.”
But Halligan’s nomination only illustrates how far Obama is willing to go to rewrite history. Halligan was not nominated until September 29, 2010, just five weeks before the midterm elections.
For decades, nominations made after the end of May during an election year are never really considered that year. The president renomiated her at the beginning of the next Congress and a vote was held on December 6th, 2011, when she fell six votes short of breaking the filibuster.
For anyone else’s nomination, a defeat by the Senate would have been the end of the story. But after leaving the Circuit Court position open for over nine months after her defeat, President Obama again renominated her for the same position on September 19, 2012. Once more, this was just before the presidential election, which again guaranteed no immediate action would be taken.
The full Senate finally turned down Halligan a second time on March 6th this year.
If you believe President Obama, her confirmation took 889 days, but, despite a four month the delay resulting from Halligan being nominating just before the 2010 election, she had her vote 433 days after her first nomination.
By comparison George W. Bush’s average nominee confirmed to that court took 707 days, with Brett Kavanaugh’s nomination dragging on over a thousand days.
Of course, Obama never acknowledges that Halligan’s radical views made her a difficult sell (giving her only 51 of the 60 votes she needed). She advocated holding gun makers liable for any misuse of their guns and believed that race should be explicitly used as a factor in college admissions.
Given such views, it is surprising that the Senate handled her nomination as quickly as it did.
There indeed does exist serious problems with judicial confirmations, and confirmations have generally become much more confrontational over time.
But bear in mind, when President Obama was a Senator, Democrats gave George W. Bush’s Circuit Court nominees much tougher confirmations.