Here's the next sentence from that first graph of Judge Wilkinson's piece:
Now, even those with the most rigid and absolute beliefs can spend a lifetime on the federal bench without a scintilla of bipartisan support.
Who exactly is Judge Wilkinson talking about? Surely not the three nominees to the D.C. Circuit Court of Appeals whom Senate Republicans blocked, for no substantive reason, before the filibuster's hold was broken last week. Surely not Patricia Millett, the eminently qualified candidate, the military spouse who has argued dozens of cases before Supreme Court as a top-shelf Washington litigator. Surely not the dozens of other Obama nominees who swept through Judiciary Committee confirmations on voice votes or with other bipartisan majorities but who were subsequently stymied by the filibuster.
This sentence is insulting to every one of the pending nominees, many of whom already have been vetted by the Judiciary Committee. It also ignores the history of the past 30 years by pretending that conservative ideologues now in the federal judiciary received bipartisan support while liberal ideologues on the federal bench have not (or will not). Four Democrats voted for Samuel Alito, for example, when he was confirmed to the Supreme Court in 2006. Forty-two other senators voted against him—enough to have sustained a filibuster under the standard the Republicans were able to use until last week.
And then the final sentence from Judge Wilkinson's first graph:
That both parties have contributed to this state of affairs does nothing to lessen its damage to the federal courts.
Yes, it's true, neither side is entirely blameless. But nodding briefly to this sort of false equivalence doesn't excuse the unprecedented extent to which Senate Republicans lately employed the filibuster to keep the nation's benches empty. Nor does it explain why there are still so few black federal judges on benches in the South, where the population of black citizens remains proportionately higher than they are in other regions of the country. Shouldn't such lingering obstacles to judicial diversity count in evaluating the "damage" done to the federal courts?
In this regard, it's instructive to know that Judge Wilkinson has been in this position before. In 2000, when his Fourth Circuit itself was under a "judicial emergency," Judge Wilkinson maintained that his court had enough judges despite its vacancies. In other words, he presaged the dubious argument made recently by Sen. Charles Grassley, the Republican from Iowa, who contends despite overwhelming evidence to the contrary that the D.C. Circuit doesn't need to fill its existing vacancies because it's not busy enough. Of course it is.
Worse, Judge Wilkinson took that stand even though his Fourth Circuit, encompassing a large black population in the South, had no black federal appeals court judges. In 2000, near the end of his tenure, President Bill Clinton made a controversial recess appointment of Roger Gregory, a black man, to that court. Read this piece by the great Supreme Court report Lyle Denniston for the background. Who agreed with Judge Wilkinson at the time? Sen. Jesse Helms. Judge Wilkinson, in fact, made the same argument in 2009 that he and his fellow Republicans make today: a judicial ideologue is more likely someone a Democratic president appoints to the federal bench.