Focus on the Family founder and chairman James C. Dobson made a series of false and misleading claims about the Senate's use of the filibuster to block judicial nominees. On the April 21 edition of Fox News' Hannity & Colmes, Dobson asserted: 1) that former Clinton nominee Richard A. Paez "was not an appeals court judge" and would not "have had a majority if given a simple up-or-down vote"; 2) that former President Bill Clinton "got 100 percent" of his appellate court nominees who reached the floor approved; and 3) that the "ABA [American Bar Association] had given its highest stamp of approval" to the 10 Bush nominees filibustered by Senate Democrats.
First, Clinton did indeed nominate Paez for an appellate court seat; he was finally confirmed in March 2000 after four years of delay by the Republican-controlled Senate. Second, Republican senators blocked 16 of Clinton's appellate court nominees in his second term alone. Finally, only three of the 10 Bush nominees that Democrats have filibustered have received the ABA's highest rating.
Responding to co-host Alan Colmes's suggestion that Senate Majority Leader Bill Frist (R-TN) is being "disingenuous" by "acting as if the filibuster's a terrible thing" after Frist himself had voted to filibuster Paez's nomination, Dobson replied: "That was not an appeals court judge. And it was not a situation where the judge would have had a majority if given a simple up-or-down vote." But Paez was an appeals court nominee, and he was ultimately approved in an up-or-down vote. The Los Angeles Times reported on November 13, 2003: "As recently as March 2000, several Republicans voted to filibuster two Californians whom President Clinton had named to the 9th Circuit appellate court: Richard A. Paez and Marsha L. Berzon. ... Ultimately, the Republican stalling tactics failed, and both jurists now sit on the appellate court."
Dobson then purported to "quote the statistics" to Colmes on the ratio of appellate nominees approved during the Clinton and Bush administrations: "President Bush has only gotten 67 percent of his appeals court nominees through when they got to the floor of the Senate. Bill Clinton got 100 percent." But Dobson's statistic is highly misleading; in fact, the Republican-led Senate kept 16 of Clinton's second-term appellate court nominees "off the floor," in most cases denying them even committee hearings.
Finally, in response to Colmes, who said of Democratic filibusters that "we're talking about 10 [nominees] out of 205 who have been confirmed," Dobson countered that those 10 nominees had received the ABA's "highest stamp of approval." But of the 10 Bush nominees filibustered by Senate Democrats, only three -- Miguel Estrada, David McKeague, and Priscilla Owen -- have received a unanimous "Well Qualified" rating from the ABA (ratings for all nominees are listed during the 108th Congress and the 109th Congress), and McKeague initially received a split rating of "Well Qualified" and "Qualified" during the 108th Congress before receiving an unanimous "Well Qualified" rating during the 109th Congress. Of the remaining seven filibustered nominees, four received a split rating of "Well Qualified" and "Qualified," and three received a split rating of "Qualified" and "Not Qualified."