On a message board that I frequent, two separate people have quoted from a Newsweek column regarding the federal court nomination disputes written by Eleanor Clift a couple of weeks ago. Amazingly, the article doesn't seem to be available on the internet anywhere, at least that I have been able to find (and I devoted more than a few minutes to locating it). I've refuted it both times, once in depth, and a second time on the fly. They tend to remove threads very quickly there, and so I actually (gasp!) visited my local library and made a copy of the article (Newsweek May 19, 2003 Page 9) to discuss here. Now if it comes up again, I will just link to this post.



The majority of the article is OK. With the exception of the final paragraph, the only quibble I have with it is that it lists the Democrat's complaints regarding a particular nominee without presenting the Republican response, but this is minor. However, the final paragraph is a major, major problem. I'll do a mini-Fisk on it:



"Battles over court nominees have intensified since 1996"



Sorry, they've 'intensified' since at least the Bork nomination battle, to say nothing of the Thomas fiasco. To establish the beginning date of the escalating nomination battles at 1996 places any blame or change in approach at the feet of a Republican majority, instead of at that of the Democrats where it belongs.



"when the Republicans unveiled a deliberate strategy to slow President Bill Clinton's appointees. The GOP put secret holds on nearly 60 nominees."



Prior to this article, I've never heard of any allegations, let alone solid proof of this allegation of the GOP's use of 'secret holds'. Ms. Clift certainly offers none. While it is extremely hard to prove a negative, I will offer substantial evidence that she is flat out wrong on this point. Judicialselection.org has a spreadsheet which gives various information regarding federal judicial vacancies for every month from January 1991 to February 2003. It makes for some quite interesting reading. On January 1, 1996, there were a total of 50 vacancies - the lowest total in Clinton's presidency. On January 1, 1997, there were a total of 83. While this rise may look a little suspicious, please note that a mere three months before, there were only 62 vacancies. Clearly there many new vacancies in this period, and the Senators were undoubtedly a little pre-occupied with the elections of that time.



While the vacancy figure continues to climb to a maximum of 100, it is also important to note the small fraction of the vacancies which Clinton even bothered to submit a nominee. While the site has an unfortunate gap in the information on pending nominees in this timeline, it appears that in the period from 8/96 to 6/97 - the time frame that the vacancy rate climbed so precipitously - Clinton NEVER HAD MORE THAN THIRTY nominees pending! It's sort of hard to blame the Senate for the vacancies when less than half of the judgeships have nominees pending. It's also rather difficult to have "secret holds on nearly 60 nominees" when the most nominees during the period seems to be 42.



Even without taking into account the normal time needed to perform (legitimately) the Senate's duty of advise and consent, I think that it is safe to say from these numbers that this claim is complete and utter bunk.



"When Clinton left office, the vacancies on the federal bench were at a record high"



THIS is the most obvious and egregious lie in the piece. I honestly cannot believe she wrote it, and that some fact checker and/or editor allowed it. It is so far wrong that it's almost breathtaking. According to Judicialselection.org, when Bush Sr. left office the vacancy rate was in triple digits. On 5/1/91 the vacancy figure was 146! When Clinton left office, it was in single digits. Could she have really made such an obvious and easily checked lie? Could it be Judicialselection.org instead which is peddling such trash? Let's let the ABA be the judge:



In total, during the 106th Congress, President Clinton nominated 116 individuals and the Senate confirmed 73 nominees (15 to the U.S. courts of appeals, 57 to the U.S. district courts, and one to the Court of International Trade) and rejected one. At the close of the 106th Congress 67 vacancies remained (25 in the U.S. courts of appeals and 42 in the U.S. district courts) and 41 nominations were returned to the President. In December 2000, President Clinton exercised his recess appointment power by appointing Roger Gregory to the 4th Circuit.



Note that this figure of 67 vacancies agrees with Judicialselction.org's number as of 12/4/2000. While the vacancy figure went up during the period between the election and President Bush's inauguration, this is also normal. Should the Senate be blamed for the 13 additional vacancies by January 2001, or should we use the ABA's figure of 67 for the "record high" number of vacancies at the end of Clinton's term. Ultimately, the lie is so huge it doesn't matter, so let's use 80.



The ABA has this to say for vacancies in the recent past:



• The current vacancy rate is high, but certainly not the highest in recent memory. During past-president George Bush’s term of office, there were 129 vacancies at the beginning of the 102nd Congress and 131 the following year. When Clinton took office in 1993, there were 115 vacancies on the bench and this climbed to 122 in 1994. The vacancy rates at the end of various sessions of Congress also have been as high or higher than now: 131 in 1991, 103 in 1992, and 112 in 1993.



This also agrees with Judicialselection.org's figures. Were the vacancies at the end of Clinton's term a "record high" or did she write a blatant lie? You be the judge. (My apologies for channeling Johnny Cochran for a moment).



"today they are the lowest in 13 years."



She's finally back on truthful ground, but she's spinning for all she's worth. We are currently at 45 vacancies, according to the federal government. This is actually the lowest in more than 13 years. What she doesn't mention is that under Clinton we were, not once, but TWICE down to 50 vacancies. One of these was in 1996, the year of those mysterious 60 "secret holds". Note that both of these lows came under a REPUBLICAN MAJORITY! With the Senate in the opposition party's hands, Clinton twice achieved a vacancy rate he never approached with a Democratic Senate. In contrast, Bush had to wait for the Senate to fall into his own party's hands before he could approach the low under Clinton.



Making this contrast worse, is that Bush (with the exception of the period immediately after his inauguration) has been far more proactive in nominating judges. In the same period of their respective Presidencies, where Clinton had only nominated people for roughly a third of the vacancies, Bush has actually already nominated people for several judgeships that aren't even vacant yet! Today there are more nominees than vacancies, pending announcements of people known to be retiring, etc.



"But Republicans say the system is broken, and Bush accuses Democrats of damaging judicial independence. That's a hard case to make: of the 13 circuit courts in the country, Republicans control eight, Democratic appointees control three, and two are divided between the parties"



This is simple a red herring. What does the make-up of the circuit courts have to do with "judicial independence"? Would having them all equally split between Republican nominated judges and Democratic judges mean that they are "independent" in any meaningful way? This split has nothing to do with "judicial independence" at all, they are simply a function of who has been getting elected President. While the last 10 years have been split 7-3 Democratic - Republican, over the last 20 it's been 12-8 Republican-Democrat, and over the last 30 years it's been 18-12 Republican-Democrat. Judges last a LONG time, so looking at these longer time frames is appropriate. The breakdown simply reflects the political realities of our system of government. So why the blather? I guess it's better to obfuscate than dwell on the actual arguments when you cannot answer them.



This final paragraph consists of nothing but blatant lies, lies of omission, exaggerations, and obfuscations. Pathetic.