Posted by Juan Non-Volokh:
Wilentz Plays with Numbers:
In today's NYT, Princeton's Sean Wilentz has a [1]letter (second item)
responding to Bob Dole's [2]op-ed on the filibuster of President
Bush's judicial nominees. Republicans obstruction of Clinton's
nominees "was much more 'extraordinary' than anything since," Wilentz
claims. His evidence is the rate at which appellate nominees were
confirmed.
between 1995, when the Republicans regained control of the Senate,
and 2001, the Republican majority blocked 35 percent of President
Bill Clinton's nominees to the federal appeals bench without giving
them an up-or-down vote. Many did not even receive a hearing.
By contrast, President Bush has, since 2001, nominated 34
candidates to the federal circuit courts, 10 of whom the Democrats
have blocked with filibusters - or just under 30 percent.
Wilentz is not comparing apples with apples here. He's comparing the
rate of appellate confirmations under Clinton during a time period
when there was a Senate controlled by the opposition party with the
rate of appellate confirmations under Bush during a time period when
the opposition party was only in control for a short time. To do this
Wilentz omits data from the first two years of Clinton's Presidency
when Democrats controlled the Senate. Why does he present this
selective data? Perhaps because it helps him make his argument. If one
looks at the overall confirmation rate of appellate nominees, his
claim completly falls apart.
Bush 41 - 78 percent confirmed Clinton - 74 percent confirmed Bush
43 - 67 percent confirmed
President Bush has the lowest appellate nominee confirmation rate of
the last three Presidents. This is even more remarkable because, of
the three, President Bush has had the Senate under the control of the
opposition party for the least amount of time. Democrats have
controlled the Senate for less than half of Bush's Presidency. Clinton
got more of his appellate nominees confirmed, even though the Senate
was under opposition control for 75 percent of his Presidency.
References
1. http://www.nytimes.com/2005/04/29/opinion/l29dole.html
2. http://www.nytimes.com/2005/04/27/opinion/27dole.html
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