“Courts Without Judges” reads the headline of an attack on Senate Republicans by the New York Times editorial board. Bemoaning the fact that there 85 vacancies in the federal judiciary, the Times asserts that “by far the most important cause of this unfortunate state of affairs is the determination of Senate Republicans, for reasons of politics, ideology and spite, to confirm as few of President Obama’s judicial choices as possible.”
However, as Ed Whelan points out, in the second-to-last paragraph of the editorial we learn that “62 district and circuit court vacancies have no nominees.” Thus, the cause of three-quarters of the 85 vacancies is that President Obama hasn’t made nominations.
In addition, as Whelan notes, the editorial, apparently relying on numbers supplied by Senate Democrats, uses the odd measure of “[a]verage wait for nominees from committee approval to confirmation,” instead of the more sensible benchmark of overall time from nomination to final Senate action, to create the false impression that Obama nominees are faring worse than Bush 43’s.
Meanwhile, there is one less judicial vacancy today. The Senate has confirmed Patty Schwartz to serve on the Third Circuit Court of Appeals (by the way, this was “not a court without judges” — Schwartz joins 13 judges on the Third Circuit, and 10 more with senior status, on that court). Although Democrats are complaining that her confirmation took too long, Jonathan Adler reminds us that Democratic Senator Robert Menendez was initially responsible for holding up her confirmation.
The Times also follows the partisan Democratic line when it insists that, unlike Bush’s judicial selections, Obama is sending the Senate “decidedly moderate” nominees. Thus, whereas the Democrats “felt compelled to filibuster” Bush nominees, Republicans are filibustering “for reasons of politics, ideology, and spite.” The Times’ concept of judicial moderation is about as reliable as its claim that Republicans are mostly to blame for the fact that Obama isn’t nominating judges.
For a more honest perspective on this issue, see this editorial in today’s Washington Post. It criticizes Republicans for blocking Caitlan Halligan’s nomination to the D.C. Circuit and urges the Senate to confirm principal deputy solicitor general Sri Srinivasan to that court. But the Post has the decency to add that “Democrats denied the well-qualified Miguel A. Estrada a spot on the court, to which Republicans reacted with understandable outrage.” The Post spoke up in favor of Estrada’s confirmation at the time.
Juxtaposing the two editorials provides a useful illustration of a liberal editorial board with scruples and a leftist editorial board that lacks them.