C. Boyden Gray, former White House counsel for President George H.W. Bush, made false and misleading claims to promote the so-called "nuclear option" to ban Senate filibusters on judicial nominations. On the May 3 edition of MSNBC's Hardball with Chris Matthews, Gray noted that more judicial vacancies existed at the end of the George H.W. Bush administration than following the Clinton administration, but he failed to mention that this higher number was due largely to the 85 new judgeships created by Congress in 1990. Gray also misrepresented the work of University of Chicago law professor Cass R. Sunstein, citing Sunstein's evaluation of judges confirmed under the Reagan, George H.W. Bush, and George W. Bush administrations to claim that even Democratic allies agree with Republicans that the nominees Democrats have filibustered are not "extremist right-wing judges."
Gray, who is also chairman of the conservative Committee for Justice, claimed that the "most relevant" figure in the filibuster debate is that "there were significantly more vacancies left unfilled at the end of [the term of] Bush 41 [George H.W. Bush] than there were at the end of [the second term of] Clinton." But the progressive advocacy group People for the American Way (PFAW) noted a crucial fact that Gray omitted:
What Gray doesn't point out is that in the middle of Bush I's term, at the end of 1990, 85 new judgeships were created. Then-President Bush was slow to send nominees for the new positions to the Senate. As a result of the new positions and slow response, the overall vacancy rate at the end of Bush I's term was 12% and the vacancy rate at the end of Clinton's term was 8%.
The PFAW report also documented that Gray's argument collapses when one examines appellate nominees alone: "[T]here were actually more appellate court vacancies at the end of Clinton's terms (23 -- for a vacancy rate of nearly 13%) than at the end of Bush I's term (17 -- for a vacancy rate of under 10%)."
Later on Hardball, Gray suggested that even Sunstein, whom Gray labeled "the leading consultant for the Democrats," does not consider the filibustered Bush nominees "extremist right-wing judges":
GRAY: The charge is, these are extremist right-wing judges. But the leading consultant for the Democrats, an academic named Cass Sunstein, professor at Chicago, has said that there's extraordinary consistency between the nominations of Reagan, Bush I and Bush II. These are the same, cut out of the same mold as previous nominations that have gone through Democratic Senates.
Sunstein, who describes himself as a moderate and has served in the Justice Department under former Presidents Jimmy Carter and Ronald Reagan, co-wrote an October 30, 2004, Washington Post op-ed which noted that "there are no significant differences among the voting records of Reagan, Bush I and Bush II appointees" in the course of arguing that the courts have been "growing much more conservative." But Sunstein's study examined only decisions by confirmed judges, not all judicial nominees as Gray claimed. Thus, Sunstein's study did not examine the 10 Bush nominees that Democrats have filibustered, whom Gray falsely suggested Sunstein's study vindicated against charges that they are "extremist right-wing judges."
In addition, while Gray implied that Sunstein concluded that George W. Bush's judges were no more extreme than his father's or Reagan's, in fact, Sunstein reached a slightly different conclusion: that Bush's nominees have followed the trajectory established by Reagan and George H.W. Bush, whose appointees represented a significant move to the right, a trajectory continued by George W. Bush's appointees relative to previous administrations, including Richard Nixon. In a September 2004 article in Washington Monthly, Sunstein asserted that because of a successful long-term effort by conservatives to "reshape the judiciary," "reactionary" judges are now considered "mainstream." An April 11 Salon.com report quoted Sunstein observing that "we have more extremely conservative judges -- like Antonin Scalia, or Clarence Thomas -- than we've ever had." According to a November 5, 2004 report by Cox News Service, Sunstein advised Bush to seek a consensus choice such as Justice Sandra Day O'Connor or Justice Anthony M. Kennedy as the next Chief Justice of the Supreme Court: "They are conservatives, there's no doubt, but they're not extremists. ... That would be a strong signal to people that he won't try to do anything radical."