THE BLOG
11/07/2014 10:52 am ET Updated Jan 07, 2015

Republican Claims About Judicial Nominations Combine Gross Inaccuracies With Banal Observations

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Republicans regain control of the Senate and already the self-serving, revisionist history has begun. In a joint op-ed published in the Wall Street Journal, GOP Senator Orrin Hatch and former White House counsel under President George H. W. Bush, C. Boyden Gray, call on Republicans to "not repeat the Democratic majority's excesses," and to instead "begin the hard work of repairing much institutional damage" supposedly wrought by Democratic Majority Leader Harry Reid.

Except, of course, when the so-called "excess" and "damage" might benefit a Republican majority.

Hatch and Gray argue that, whatever other changes may be required, Republicans should not restore the 60-vote threshold to confirm judicial nominees. Senate Democrats changed that rule a year ago after Republicans, in an effort to undermine the president's policies, abused the filibuster and blocked three consecutive nominees to the D.C. Circuit Court of Appeals. Now only a simple majority is required to end debate on most executive and judicial nominations. Hatch and Gray say this rule change has given President Obama an unfair advantage on judicial confirmations, and to deprive a future Republican president of that same advantage "would only invite further damage to the institution."

Setting aside their flawed internal logic, the evidence supporting their view is an ineffective combination of gross inaccuracies and banal observations about the president's impact on the federal judiciary. For example, they point out that "judges appointed by Democratic presidents now considerably outnumber judges appointed by Republican presidents." That's true, but it has nothing to do with Senate rules reform. It is the unsurprising result after a president, endowed with the constitutional duty to appoint federal judges, serves nearly six years in office. After eight years of President George W. Bush, Republican-appointed judges made up 60 percent of the federal judiciary, and held the majority on ten out of 13 federal courts of appeals.

In addition to the quantity of judicial confirmations, Hatch and Gray persist in their bizarre view that it was improper for President Obama to fill longstanding vacancies on the D.C. Circuit, and they complain that rules reform has led to "controversial judges."

These claims ignore the fact that President George W. Bush filled exactly the same seats on the D.C. Circuit when they became vacant during his administration, and his appointees included controversial judges Janice Rogers Brown (confirmed by a vote of 56 to 43) and Brett Kavanaugh (confirmed by a 57 to 36 vote). But more to the point, their characterization of Obama's nominees as "controversial" disguises the truth: Of the 62 federal judges confirmed in 2014 so far, 45 -- or 73 percent -- were confirmed with 90 or more votes in favor; 56 nominees -- or 90 percent -- were confirmed with bipartisan support. Far from controversial, the vast majority of the president's judges have been consensus nominees.

Finally, Hatch and Gray describe a "destructive pattern of double standards" in which Republicans cooperate on judicial nominations and Democrats do not, including what they describe as the Democrats' "unprecedented filibusters of lower-court nominations under President George W. Bush." That's quite a statement following a year in which Senate Republicans did not consent to a single confirmation vote, and instead forced cloture votes -- that is, attempted to filibuster -- all of President Obama's judicial nominees.

In reality, Senate Republicans have relentlessly obstructed President Obama's judicial nominees by forcing Majority Leader Reid to file cloture motions on 102 nominations so far. That represents a dramatic departure from the long-held tradition of confirming judges via unanimous consent or simple voice votes. By contrast, in all eight years of President Bush's presidency Senate Democrats required cloture petitions on a total of 22 judicial nominations.

In the end, Hatch and Gray's biased account, littered with unsupported, conclusory assertions, betrays the purely partisan nature of their view: They demand a return to tradition and procedural safeguards and a Senate that serves "as a check on executive-branch overreach," but only so far as it benefits the new Republican majority, and not one step further.