Jonathan Zasloff writes:
One of the memes going around nowadays is that the Republicans just HAVE to end the judicial filibuster because poor George W. Bush just can’t get his nominees through the awful obstructionist Democrats. My friend and colleague Steve Bainbridge agrees, citing a blogger named Gerry Daly, and somehow Rush Limbaugh got a hold of Steve’s post, and broadcast it to dittoheads far and wide. Previously, The Economist printed it, giving it an air of credibility. Now, we hear the same wailing from Juan Non-Volokh.
The tale goes something like this: if you look at the hard, cold data, then it shows Bush has had a harder time getting circuit judges confirmed than any other President in recent history. Daly and The Economist claim that Bush only gets 55% of his circuit judges approved; the Non-Vol says that Clinton got 74% approved, while Bush only got 67%.
Now, the fact that the Republicans can’t even get their own numbers straight should tell you something about the veracity of their arguments. But there’s a deeper problem: the whole argument rests upon a series of distortions, brought about by comparing apples and oranges.
The real data comes from the Congressional Research Service. This does indeed seem to show a significant dropoff. But that is only because it essentially robs Bush of an entire year of Senate process. The CRS data ends on December 9, 2003, conveniently ignoring that the 108th Congress had another year to run. And guess what? The Senate–with all those bad Democratic obstructionists–confirmed five more of Bush’s nominees. Oh yes, Bush did nominate one more candidate during 2004 that the Senate did not act on–Thomas B. Griffith for the DC Circuit, a man who didn’t even have a license to practice law for much of the six years before he was nominated.
(Griffith says that it was just an clerical error. I’m waiting for him to accept that from someone applying for political asylum: for them, mistakes like that will get them deported and probably killed.)
What’s the upshot? During his first term (and overall) Bill Clinton had 71.4% (30/42; 65/91) of his nominees confirmed. George Bush had 67.6% (35/52) of his nominees confirmed.
In contrast to what non-Volokh says, this is a good comparison, because for first terms, each President had his party in control of the Senate roughly half of the time.
So essentially, this is very close. In fact, it is so close that it isn’t even statistically significant. The difference is well within the margin of error. One change of one nominee, and you have a wash.
One way in which the Republicans are cheating with numbers is by trying to include Bush’s percentage for the ongoing 109th Congress. This is egregious subterfuge: it is simply nonsense to use a percentage claim from an ongoing Senate session.
So much for the quantitative numbers. But the Limbaugh/Economist distortion is even worse than that, for two reasons:
1) It essentially misses the point. The argument here is over filibusters, not confirmation percentages. Of Bush’s 51 nominations, the Democrats filibustered exactly 10. That leaves 41, or more than 80% of Bush’s nominees, with the normal process. It’s not the Democrats’ fault that the Republicans can’t get Bush’s own nominees through the chamber. Neither the CRS nor the Republican noise machine has provided any evidence that the Democrats are using procedure to string things along. The overall numbers are simply not relevant to the story.
But let’s assume they are–that’s what you have to do in a capital where logical arguments don’t count for much with the majority party. Let’s consider the second point:
2) Bush lost the 2000 election. I know that the Republicans don’t want to hear about this, but their guy actually got fewer votes than ours. The Democrats had absolutely no legal or policy reason to give an iota of deference in the wake of the 2000 election–especially after Bush proceeded with his policy agenda as if the popular vote made no difference, and after he decided to politicize 9/11. The man had no mandate–unlike Bill Clinton, who after all got more votes than George HW Bush or Bob Dole.
Now, the obvious response to this is: “Yes, and George W. Bush won the 2004 election.” Okay–see objection 1. Were the Democrats threatening to filibuster every judicial nominee that Bush sent up, that would indeed would be a story. But they are not: they are simply doing–almost statistically–exactly what the Republicans did to Bill Clinton for 8 years.
And none of this even considers the extremism of many of the Bush nominees–or, like Griffith, their general lack of qualifications. (Another nominee’s primary legal experience was working for Independent Counsel Ken Starr. Enough said.) More on this later.
But the overall point is clear: you will hear over the next week a whole lot about how “nominees aren’t getting through.” Rest assured, this is about as truthful as anything else that the GOP has been spouting for the last four years.
1. Apologies department: I got Daly’s first name wrong in the original version of this post. It’s Gerry, not John. (Daly does say that he wish he had a golf stroke like John. Fair enough.).
2) After the whole post is done, Daly and I actually agree on the count: Clinton 71.4%, Bush 67.3% (I think that Bush could be a tad higher-it’s unclear of this posting whether Bush had 31 or 32 nominees). That’s still statistically insignificant.
The Controversy Continued: Mistakes, Apologies, Politics, Context and Crybabies
It is never enjoyable to admit when you are wrong. I was. Looking through the numbers again, I find that in an apples-to-apples test, for the first term, Clinton’s number isn’t 71.4%–it is 76.9%, for reasons that Daly explains: 39 is the number of individuals and 42 was the number of nominations. If you are going to do apples to apples, then you need to use 39. Bush is 35/52 and Clinton is 30/39–that lower denominator is because of comparing individuals. And that lower denominator does indeed create a statistically significant difference. Not by much, but it is.
The embarrassment is doubly mine because my original post suggested a dishonesty on Daly and Non-Volokh’s part that I did not intend to ascribe to them and that they did not engage in–viz., not including all of the 108th Congress and including the 109th. This was not my intention. A reasonable reader, however, could see it that way. My writing was not malicious, but it was careless. I apologize. Like the numerical argument, I was wrong.
And this could just end the matter. But it doesn’t. Because although the Clinton First Term v. George W Bush First Term is an apples-to-apples comparison, it actually sharply favors of the Republicans because it ignores the political context. This is not strictly an argument on percentages, and I suppose I could be accused of changing the subject, but in my original post, in the effort to meet the other party on its own terms, I compared the 103rd/104th Senates under Clinton, and the 107th/108th Senates under Bush. But of course, this ignores something big: the overall actions and record of the 104th, 105th and 106th Senates. And looking at that shows why, although Daly and Non-Volokh say that they are acting in good faith, and for the record I believe them, raw numbers can badly mislead.
Take a look again at the CRS study–this time, Table 4(b). This gives you Congress-by-Congress determination of how Presidential nominations have worked–again, by individuals. When does the change come in comfirmations? The 104th Senate, when the Republicans took control. The Democratic 101st Senate confirmed a whopping 95.7% of Republican George HW Bush’s nominees in his first two years in office–a higher percentage even than the Democratic 103rd Senate confirmed for Bill Clinton (the reduction was mainly due to GOP opposition, but it is not statistically signficant). The 102nd Senate, Bush I’s second two years, was much stingier, at 64.5%. This seems typical of even-numbered “run out the clock” Senates. Even the Republican 98th, in Reagan’s first term, was only about 73.7; the first Democratic Senate for Reagan was a pre-election Senate, and came in at 65.4%. (Of course we don’t have any GOP Senate with a Democratic President since Truman).
Now look at what happened when the Republicans took over. In the 104th Senate, the percentage dropped ten points from the equivalent 102nd–a statistically significant drop. But that wasn’t good enough. By the time of the 106th Senate, the percentage had dropped down to 44.1%–the first time in the CRS numbers where the percentage goes under 50%. (The table appears to show the same thing for the 107th under Bush, but this is a statistical artufact of Clinton’s unsuccessful and purely symbolic last-minute appointments–it’s roughly 53%) What about the 105th? After all, odd-numbered Senates are a little more generous, aren’t they? No way–only 66.7% of Clinton’s nominees got through: a nearly 30 point drop from what the Democrats gave George HW Bush in the equivalent 101st Senate.
In other words, the Republicans took the Democrats’ mid-60’s, dropped it by ten points, and then dropped it again by ten points for the even-numbered Congresses; and they dropped the Democrats 95.7% by nearly 30 points for the odd-numbered Congresses. This was an unprecedented hammering.
And it was not simply that they did it; it was the way that they did it, through their changes in the “blue slip” rules. They denied Clinton’s nominees an up-or-down vote–the same actions that they are complaining so much about now. I was going to write a description of blue slip saga, but fortunately, the estimable Kevin Drum has already done it.
In order to give Clinton fewer nominees than the Democrats had given Reagan or Bush I, the GOP changed the rules. When Bush II came in, the Republicans changed the rules again. (Recently, they have changed them AGAIN–now, even two blue slips won’t defeat a nominee, as Bush’s Michigan appointments are going to the floor despite the objections of both of that state’s senators, and his California nominee is as well.). And they did so using a similar procedural gambit to what Republicans complain about now and say is unconstitutional: the refusal to grant an up-or-down vote.
Thus, to compare Clinton under his first term to Bush under his first term is to pretend that history didn’t happen. The argument from straight percentages boils down to, “why don’t you guys go away–that’s what we did during the 103rd Congress.” And the riposte to this is: I wasn’t born yesterday. After what you guys did for six years, don’t ask us to suddenly sing kum-ba-ya here. The very reason why Bush had these slots to fill is because you ran the clock out in a way that makes Democratic actions in the 100th and 102nd Senates look like patty-cake by comparison. Whereas we gave George HW Bush 95.7% of his nominees, you cut that by nearly 30 percent for Clinton. And you did so using a procedural trick that you now suggest is unconstitutional. (In fact, the Democratic 107th Senate confirmed a higher percentage of Bush’s nominees than the Republican 106th Senate; not exactly apples-to-apples given the political cycle, but a decent show of faith given the history of the past six years and Bush’s loss in the popular vote.). For the Republicans now to suddenly complain of Democratic obstructionism really shows a kind of chutzpah that would be funny were it not close to succeeding.
Which brings me to the “crybaby” epithet. Daly says that he hates this kind of name-calling, and I believe him. Generally, I don’t think it’s good form, although as epithets go, this is quite mild. So I can understand and sympathize with Daly’s and Non-Volokh’s complaints on this.
But there is a bigger picture here. The bottom line is this. The Republican Party is the dominant political force in this country. It controls all the political branches and the judiciary as well. Over the last several years, it has changed the rules several times to entrench and perpetuate its rule. This apparently is not good enough, so it it is contriving to change the rules yet again in order to stamp out all resistance. And, at the peak of its dominance, it claims that it is doing so because of the actions of a minority that it dwarfs in any conceivable measure of political power. I leave it to readers to apply a suitable description for this attitude: given the options involved, “crybaby” is pretty tame.