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GOP's Unprecedented Obstruction of Obama's Judges Began in 2009

February 19, 2016

In the immediate aftermath of the death of Supreme Court Justice Antonin Scalia, Senate Republicans led by Mitch McConnell (R-KY) unveiled another unprecedented tactic in their once-unimaginable campaign of obstructionism. The GOP's immaculate rejection of any Court nominee in the final year of Obama's presidency isn't just belied by Supreme Court history. As it turns out, McConnell himself was among those both denouncing that so-called "Thurmond Rule" and voting for the confirmation of Justice Anthony Kennedy in the last year of Ronald Reagan's tenure.
But largely overlooked in the Republicans' Supreme sabotage is this. The GOP hasn't just erected never before seen roadblocks to judicial nominees in the last year of Barack Obama's presidency; Republicans did it in year one as well.

The GOP strategy of blocking the court house doors to new Democratic judges began the moment Barack Obama first walked into the Oval Office. (Republican calls for "up or down" votes and an end to the judicial filibuster went silent before Obama was even sworn in.) Citing research by the Alliance for Justice, in June 2011 ThinkProgress reported:

[T]he Senate confirmed fewer of [Obama's] district and circuit nominees than every president back to Jimmy Carter, and the lowest percentage of nominees - 58% - than any president in American history at this point in a President's first term. By comparison, Presidents George W. Bush, Clinton, George H.W. Bush, Reagan and Carter had 77%, 90%, 96%, 98%, and 97% of their nominees confirmed after two years, respectively.
Senate Republicans' mass obstruction of Obama's judges stands in stark contrast to the treatment afforded to past presidents. Indeed, the Senate confirmed fewer judges during Obama's first two years in office than it did during the same period in the Carter Administration, even though the judiciary was 40 percent smaller while Carter was in office.

As dismal as that record was, it was actually an improvement from a year earlier, when only 43 percent of President Obama's judicial appointments had been confirmed during his first year-plus in office:

Judicial confirmations slowed to a trickle on the day President Barack Obama took office. Filibusters, anonymous holds, and other obstructionary tactics have become the rule. Uncontroversial nominees wait months for a floor vote, and even district court nominees--low-ranking judges whose confirmations have never been controversial in the past--are routinely filibustered into oblivion. Nominations grind to a halt in many cases even after the Senate Judiciary Committee has unanimously endorsed a nominee.
Such tactics are completely unprecedented, and so are their results. Fewer than 43 percent of President Obama's judicial nominees have so far been confirmed, while past presidents have enjoyed confirmation rates as high as 93 percent. And President Obama's nominees have been confirmed at a much slower rate than those of his predecessor--nearly 87 percent of President George W. Bush's judicial nominees were confirmed.

It's no wonder Chief Justice John Roberts--certainly no friend of Barack Obama and the Democratic Party--urged action in January 2011 to address "the persistent problem of judicial vacancies." Eventually, then-Senate Majority Leader Harry Reid (D-NV) went "nuclear," banning the filibuster on non-Supreme Court nominations. But by 2014, the confirmation rate for Obama's selections still trailed George W. Bush's by 88 to 79 percent. And Obama's choices for both the federal bench and executive agencies had to wait far longer to be confirmed:

As we fast forward to current crisis manufactured by the Republican majority in the Senate it is worth recalling President Bush in his last year in office did not face the same barriers from the Democrats then controlling the chamber. On February 7, 2008, Bush held a White House press conference demanding action on his judicial and executive branch nominees using language almost identical to President Obama's this weekend:

As President, I have a constitutional responsibility to nominate qualified men and women for public office. That's my responsibility, I take it very seriously. I have nominated skilled and faithful public servants to lead federal agencies and sit on the federal bench. The Constitution also gives senators an important responsibility. They must provide advice and consent by voting up or down on these nominees. Unfortunately, the Senate is not fulfilling its duty...
As senators confirm these nominees, they also must confirm judges to the federal bench. I've nominated good men and women who will rule by the letter of the law, not the whim of the gavel. I thank the senators on both sides of the aisle -- like Mitch McConnell, Jon Kyl and Arlen and Dianne Feinstein and Thad Cochran for helping confirm fine judges like Leslie Southwick.

The Senate complied with Bush's request. Dubya had four appeals court judges confirmed in 2008, three of them nominated after March 1. President Bush also had 23 nominees confirmed to lifetime roles on federal district courts.
Alas, that was then and this is now. And now, a Democrat sits in the Oval Office and Republicans own the Senate. Which is why President Obama has had just one circuit court nomination confirmed in 2015 and 2016, and a total of four district courts judges approved since New Year's. And as the Daily Beast recently documented, Republicans began applying the brakes last year:

According to a detailed study by the Brookings Institute, the Senate has already slowed the pace of judicial confirmations to record levels. In the case of Reagan, Clinton, and Bush, confirmations didn't slow until the second half of the presidents' eighth year in office. In their seventh years, the Senate confirmed 23, 17, and 29 judges, respectively. In Obama's seventh year? 10.
In other words, the two-term Republican presidents fared almost twice as well as the two-term Democrat presidents, with Obama faring the worst by far.

Clearly, Democratic Presidents--especially this Democratic President--don't get the deference Republicans reserve for their own. In July 2008, current Senate Judiciary Committee Chairman Chuck Grassley (R-IA) called the Thurmond Rule "bunk," and insisting "the reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president's term." But with Barack Obama in the White House, Grassley now pretends, "The fact of the matter is that it's been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year."
Of course, that was also the GOP line during much of Obama's first two years in office. Apparently, Republicans only consider Barack Obama to be three-fifths of a president. And that certainly does sound like a Strom Thurmond rule.


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Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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