Judicial Confirmation Statistics

Very good table of stats on judicial confirmations. Fewer than 40% of Bush's nominees have been confirmed. Even Clinton got 61% of his nominees confirmed. I'm not sure if his midnight nominees count in the number returned.

Daly Thoughts

The decline in confirmations since Ford I think is largely due to the ascendancy of the view of the constitution as a "living document." Previously the primary qualification of a Supreme Court Justice was that he/she be a good lawyer especially skilled in reading and writing. If the meaning of the Constitution is fixed, the intent of its framers as understood by its ratifiers, then a good justice is one who is particularly skilled at applying fixed principles to new and unforeseen circumstances. Confirmation of a justice is simply affirmation of his/her competence.

The "living constitution," however, requires different skills: imagination, creativity, and policy-making ability. A judge creates new principles. He/she is a law-maker for life. The confirmation process is not an evaluation simply of technical skill, but an effort to discern the nominee's legislative agenda, whether the nominee's views are "moderate," representing the "will of the people."

Democratic senators unintentionally came clean on this yesterday at their MoveOn press conference. Barbara Boxer, arguing for a supermajority vote on judicial appointments in violation of the Constitution,

"There ought to be a super vote. Don't you think so? It's the only check and balance on these people. They're in for life. They don't stand for election like we do, which is scary."

Boxer's statement makes sense only if a judge's role is basically the same as a legislator's. Yes, it is "scary." But you would think that this fear and anxiety would lead to some introspection, to asking some basic questions. Maybe this is not a flaw in the Constitution, but a mistaken judicial philosophy. Would the framers of the Constitution, very careful and nuanced thinkers, simply overlook a needed "check and balance" that's so blatantly obvious to a less-than-astute thinker such as Barbara Boxer?

Of course not. Judges needed no check on their legislative authority because they had none! Neither did they stand for election; they had no constituency to represent.

The answer is not to require a supermajority for confirmation but to repudiate the judicial philosophy that led to this absurd idea.

Update: Daly Thoughts has a number of updates to stats on Circuit Court nominations adjusting for the effect of renominations. The numbers change fairly dramatically but still support the charge of obstructionism.