National Review Blogger's Conspiracy Theory Backfires

Blog ››› ››› ADAM SHAH

With the help of an anonymous "Senate insider," National Review Online Blogger Ed Whelan came up with a bizarre conspiracy theory to mitigate one of the most egregious examples of Senate Republicans' obstruction of President Obama's judicial nominations. And now the conspiracy theory has proven to be totally baseless.

The story involves Marco Hernandez, a nominee to be a federal trial judge in Oregon. What makes Hernandez different from most nominees is that he was originally nominated by President Bush in July 2008, but his nomination lapsed without action by the Senate. So, one would think that there would be little objection from Republicans when Obama renominated him. But on December, 22, 2010, Senate Judiciary Committee Chairman Pat Leahy (D-VT) reported on the Senate floor that Republicans had obstructed the nomination by refusing to grant unanimous consent to allow a floor vote.

Obama renominated Hernandez when the new Senate convened, and on February 7, Hernandez was confirmed by unanimous consent. The Oregonian newspaper subsequently ran an editorial decrying the obstruction of Hernandez's nomination. And then Whelan entered the picture.

Whelan said a Senate insider had told him that, while publicly declaring his support for Hernandez in 2008, Sen. Ron Wyden (D-OR) actually used his power as Hernandez's home state senator to block the nomination. Why would Wyden do such a thing? Whelan reported that unnamed "Senate insiders suspect that Wyden acted at Senator Leahy's behest, in order to prevent President Bush from getting credit for appointing Hispanic judges."

Seems a bit far-fetched. According to the Federal Judiciary Center's database, President Bush appointed 30 Hispanic federal judges. Would it have really made such a difference to stop Bush from appointing the 31st such judge?

It turns out that this theory was far-fetched and untrue. Whelan now reports that Wyden's staff has documented that Wyden gave his official approval for Hernandez in September 2008 contingent on the completion of committee's review of the FBI background report on Hernandez, which, according to Wyden, came in early October 2008.

Yet Whelan is still sticking to the possibility that his conspiracy theory is correct and is still attacking the Oregonian, which can only mean that Whelan has never head of Occam's Razor.

Here's Whelan's attempt to resuscitate his conspiracy theory:

One interpretation of this set of events is that Wyden acted in a timely manner to support the Hernandez nomination--that he indeed returned his contingent blue slip when he might reasonably have waited until the committee review of the FBI background file was complete. Consistent with this interpretation, Wyden's staff has documented for me that Wyden, in a July 2009 letter to the WhiteHouse, added Hernandez's name to the list of candidates that the state selection committee had recommended that President Obama consider for the vacancy. Under this interpretation, either Leahy slow-rolled the 2008 nomination on his own, or the nomination just came too late to be processed. (I will note that the other district-court nominee nominated the same day as Hernandez was confirmed; three nominees nominated a day later were confirmed; and four other nominees nominated no more than 13 days earlier were also confirmed.)

A competing (more cynical, and therefore more plausible?) interpretation is that Leahy and Wyden worked together to slow-roll the Hernandez nomination--in order to deprive President Bush of credit for a Hispanic appointee--and to give Wyden plausible deniability about blocking a Hispanic nominee. Under this theory, Leahy's staff delayed reviewing Hernandez's FBI background file until it was clearly too late to act on the nomination, and Wyden sent his contingent approval to Leahy only after Leahy had already held the final confirmation hearing of the year.

I will note that nothing in this amplification affects my bottom-line judgment that the Oregonian was wrong to somehow draw from the Hernandez confirmation process the lesson that "more than a few Republicans are all too eager to get their hands on Obama's appointments."

Posted In
Government, Nominations & Appointments, The Judiciary, The Senate
National Review Online
Ed Whelan
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