Fibs, Darn Fibs, and Judicial Confirmation Statistics.

In today's Los Angeles Times, columnist Ronald Brownstein argues that President Bush should make a deal with Senate Democrats to break the deadlock over judicial nominees to the Circuit Courts of Appeals.

At this point, it's more important to establish a process that would allow future presidents to reach reasonable agreements with Congress on how to fill vacancies.

The solution may be no more complicated than reviving an idea that might seem quaint in this hyper-partisan era: making a deal.

Bush could quietly review his list of nominees with Senate Democratic leaders, drop a few they consider most objectionable and adopt a small number of choices they prefer (perhaps some of the blocked Clinton nominees).

In return, Democrats would accept the rest of his names. Then the two sides would agree to quietly construct slates for future vacancies that accept the president's predominance but acknowledge Democratic concerns.

Initially, Bush would surely resist that approach as an infringement on presidential prerogatives. But suffering a defeat on every third appellate court nominee hardly invigorates presidential authority.

Many Democrats might denounce such an arrangement as surrender. They might remember that another Democrat will be elected president someday — and will almost certainly face a Senate with enough Republicans to sustain their own filibusters.

To reach his conclusion Brownstein makes a misleading comparison between the confirmation rates of Clinton and Bush nominees.

The tension has come over Bush's appointments to the powerful Circuit Courts of Appeals. Bush nominated 52 appellate court judges in his first term; Congress approved 35 of them. That's prompted the GOP charge that Democrats are abusing the right to advise and consent on presidential appointees.

But Republicans blocked almost exactly as many of President Clinton's nominees. Clinton, during his second term, nominated 51 appellate court judges — and the Republican Senate confirmed 35.

The mistake Brownstein makes with this comparison is evident from the final six words of the previous quote, "... and the Republican Senate confirmed 35." It is misleading to compare confirmation rates between times of unified government when the president and the senate are controlled by the same party to times of divided government when the senate is controlled by the president's political opposition.

Why Brownstein makes the comparison he does is unclear but its effect is obvious. The comparison serves to delegitimize Republican complaints about Democratic opposition to Bush's judges and to legitimize the Democrats' tactics as simply more of the same old politics. Yet a comparison of confirmation rates between times of unified government and times of divided government reveals just how egregious Democratic treatment of Bush's appellate court nominees has been.

Fortunately, the internet provides just such a comparison in the form of a report of the Congressional Research Service available here. (See Table 12, pp. CRS-38-39.)

According to this report, which charts figures through 2003, the confirmation rate for President Clinton's appellate court nominees when Democrats controlled the Senate was 79.2 percent, 19 of 24; for Bush's nominees under Republican control it is 27 percent, 13 of 48. (To be fair, the Bush confirmation rate during unified government is skewed by 2001's defection of Senator Jim Jeffords, which occurred after the 16 were nominated. In 2001, none of Bush's 16 nominees were confirmed.) Removing 2001 from the mix provides a more accurate measure of the rate during unified government but still leaves Bush's confirmation rate at 40.6 percent, 13 of 32, a hefty 38.6 percent lower than Clinton's.

The confirmation rate during times of divided government under Clinton was 38.3 percent, 46 of 120; under Bush, 14.7 percent, 17 of 116, again considerably lower than Clinton's. (Bush's figure for divided government includes the 16 nominees that failed in 2001.)

These statistics show that Democrats have played much harder ball with Bush's nominees than Republicans ever did with Clinton's.

The political reality is that Democrats have not yet accepted Bush's legitimacy as President or their own status as a minority party in Congress. Brownstein's solution reflects that same flaw.

Bush campaigned hard in the recent election not just for a new term for himself but to maintain and strengthen his party's majorities in Congress. That effort succeeded in the Senate where the Republicans now control 56 seats. Brownstein's solution would undermine all Bush's efforts to increase that majority by having Bush cut out the Republican leadership and negotiate directly with a lessened Democratic minority for acceptable nominees, as if they were the majority party in the Senate.

Brownstein's solution might make sense if the American people had decided that Democrats should be the majority party in the Senate. But they did not. The voters chose to send Bush back to the White House and to increase the Republican majority in the Senate. A solution to the judicial deadlock that respected that fact would work with that reality rather than against it.

-tdr