E-mails from Mike Gerhardt

From: Bengerhardt@aol.com
Date: December 6, 2004 1:00:02 PM EST
To: jlott@aei.org (John Lott)
Subject: Re: Senate's 'Nuclear Option'

Hi, this is Mike Gerhardt from the road. I guess the short answer is it depends on how calculate success. We calculated it by looking at the number confirmed of those reaching the Senate floor. We figured that it is too soon to say whether nominations that have not yet cleared the committee could be treated as failures -- they are not yet resolved, insofar as we are concerned. I understand that you will not agree with this calculation but it made sense to us.

From: John Lott Date: December 8, 2004 8:06:41 AM EST
To: Bengerhardt@aol.com
Subject: Re: Senate's 'Nuclear Option'

Thank you for your note. But whatever your belief on those nominations that should be excluded from the sample, your piece should have stated that you were not looking at all nominees. Removing cases from the sample where nominees had trouble in committee (for example, when the Democrats wouldn't let people through when they controlled the Senate during Bush's first two years) paints a selective view of the difficulty in getting people confirmed. I also believe that your claim is not correct even on its own narrow terms for earlier administrations such as most recently Reagan's first term.

From: Bengerhardt@aol.com
Date: December 8, 2004 11:25:49 AM EST
To: jlott@aei.org (John Lott)
Subject: Re: Senate's 'Nuclear Option'

I appreciate all your points. Of course, the same can be said for the numbers employed by Republicans in the Senate. At the very least, there is no credible ground I believe for saying Democrats' obstruction is "unprecedented," is somehow the "worse" ever, or other rhetoric to that effect. Even under your numbers, Bush is likely to finish his first term close behind Carter and perhaps tied with Reagan. That's pretty darn good. And, you also know, that without the filibuster (and without recognition of Rule IV of the Senate Judiciary Committee's rules) the President will break Carter's record of success.

From: John Lott
Date: December 8, 2004 11:44:31 AM EST
To: Bengerhardt@aol.com
Subject: Re: Senate's 'Nuclear Option'

I guess that I was not trying to debate Republican versus Democratic talking points. If you happened to read the op-ed that I had a few weeks ago, my point was that things have been getting worse under both Clinton and Bush and that no one has completely clean hands. I have put together a detailed data set on the length of confirmations, the confirmation rate, as well as many other aspects of the process. We are both academics and it is important to get things correct. I believe that it would be in your interest to write the LA Times and ask them to make a very brief correction on the claim that Bush has the highest confirmation rate. There were other issues with the piece, but it seems that is the most important point.

From: Bengerhardt@aol.com
Date: December 8, 2004 12:01:47 PM EST
To: jlott@aei.org (John Lott)
Subject: Re: Senate's 'Nuclear Option'

I would be happy to see your data if you want to share with me. Thanks.

From: John Lott
Date: December 8, 2004 2:43:03 PM EST
To: Bengerhardt@aol.com
Subject: Re: Senate's 'Nuclear Option'

Here is a list of the judges and their nomination dates as well as the simplest note on whether they were confirmed. Please now show me that you have the data to make the claims that you are making.

From: Bengerhardt@aol.com
Date: December 8, 2004 3:37:31 PM EST
To: jlott@aei.org (John Lott)
Subject: Re: Senate's 'Nuclear Option'

Tell you what. I will not look at this until such time as it is published. I asked merely out of politeness and curiosity.