The Heritage Foundation has come out with a new effort to distract Americans from the illegitimacy of the GOP's effort to unilaterally eliminate the president's ability to fill vacancies on the DC Circuit.

The right wing's previous arguments on this issue have fallen flat, sometimes hilariously so. Their bogus caseload arguments have been shown multiple times to be both wrong and irrelevant. Chuck Grassley's bill to strip three seats from the DC Circuit and give two seats to courts that (Republicans claim) need them turned into a Keystone Cops routine when one of the bill's cosponsors held those same two circuits out as examples of courts that don't need new judgeships at all. More and more, Americans are recognizing the GOP's actions as part of their greater effort to simply nullify laws and election results they don't like.

So with that as background, along comes the latest distraction: The Heritage Foundation has cherry-picked some stats in an effort to show that Republicans are generally treating President Obama's nominees better than President Bush's were treated (which perhaps is supposed to put the current DC Circuit obstruction in perspective). What they've done is compared the numbers of nominees confirmed between January 20 and November 20 of the fifth year of the president's term, ignoring the 4 years of each presidency up to that point. Well, if President Obama's nominees are getting treated so fairly, maybe we're not supposed to worry about a measly three who are getting filibustered.

But what happens if you don't ignore the "inconvenient" parts? You find that as of this point in their presidencies, Bush had 91% of his judicial nominees confirmed, while Obama has had only 76%. And at this point in their presidencies, the average wait time between committee approval and confirmation was 43 days for Bush nominees, but 107 days for Obama nominees. Although the vast majority of Obama's nominees are consensus choices, their nominations still languish for months. That is a picture of overall obstruction. And the DC Circuit is the latest example, magnified a thousandfold.

But, despite this latest right wing effort to distract, this is not and should not be a fight about numbers. It is a fight about right and wrong, about legitimate and illegitimate ways for elected officials to act. It is about whether one party can use the power of obstruction to nullify laws they don't like and nullify the American people's decisions as expressed in elections.

So the Heritage argument isn't just wrong, it's completely irrelevant. Let's talk not about numbers but about what Republicans are doing. And let us call it what is it: Nullification.