A Time to Go Nuclear?

In February 2003, Miguel Estrada became the first ever nominee to a federal appellate court to be successfully filibustered when a majority of Senate Democrats voted against cloture on his nomination.  Estrada had been nominated to fill on a seat on the U.S. Court of Appeals for the D.C. Circuit, and was widely seen as a potential Supreme Court nominee. He was the first appellate nominee to be felled by a filibuster, but he would not be the last. During the Bush Administration, Senate Democrats successfully blocked cloture on 10 of President Bush’s appellate nominees.  All ten enjoyed majority support and would have been confirmed on a bipartisan vote had they not been filibustered.  Five of these nominees were eventually confirmed after the Gang of 14 deal and a swap of nominees for the U.S. Court of Appeals for the Sixth Circuit. The other five were not.  (For more on the history of judicial nominations, see this post and the links therein.)

During the Obama Administration, Senate Republicans have returned the favor, initially blocking cloture on Ninth Circuit nominee Goodwin Liu, followed by D.C. Circuit nominee Caitlin Halligan. This year, Senate Republicans have successfully filibustered three more nominees to the D.C. Circuit, arguing that the Obama Administration’s insistence on filling these three seats is an effort to tilt the ideological balance of the D.C. Circuit (particularly given that the court’s workload is down and there are unfilled judicial emergencies on other courts).  As I noted here, the arguments Republicans make in support of this move parallel the arguments once made by Senate Democrats to justify their obstruction of judicial nominees during the last three Republican presidents.  I don’t find these arguments compelling when made by either side, but what’s sauce for the goose is sauce for the gander.

Despite allowing the confirmation of judges for other courts, and one D.C. Circuit nominee, Republicans have continued to block Obama’s latest D.C. Circuit nominees.  Now that Senate Republicans have now successfully filibustered five Obama nominees — the same number as Senate Democrats blocked with a filibuster (but half those for which cloture was initially defeated) — Senate Majority Leader Harry Reid wants to change the rules.  According to several news reports, Senator Reid is prepared to invoke the so-called “nuclear option” and force through President Obama’s nominees on a party-line vote, perhaps as early as today.  What this involves is making a parliamentary ruling that only a majority vote is required to end debate on a judicial nomination and then sustaining that decision with a majority vote.  Some Senate Republicans threatened to take such a step during the Bush Administration, but backed off when a group of Senators from both parties forged a temporary deal to end the stand-off and avert the rule change.

I have long argued against the use of filibusters and other delaying tactics to block confirmations.  I believe that all judicial nominations should receive reasonably prompt up-or-down votes.  The question has always been how to make this happen.  In the past, I have encouraged a bipartisan deal to end the filibuster of all judicial nominations, such as an agreement to allow simple majority votes after the next Senate election, perhaps combined with a nominee swap as was used to end the blockade of President Bush’s nominees to the U.S. Court of Appeals for the Sixth Circuit.  I still think such a deal is the best way to end the obstruction of judicial nominees, particularly given the long history of tit-for-tat-plus on judicial nominations.  I also did not support the nuclear option when Senate Republicans considered it, as I did not think one party should change the Senate rules on a strict party-line vote.  Perhaps I should reconsider.

The current super-majority requirement for judicial nominations, combined with the application of interest-group litmus tests on judicial ideology, has made it increasingly difficult to confirm high caliber judicial nominees, particularly if they have ever been involved in any controversial issue.  The current confirmation gauntlet has discouraged Presidents from nominating many high-quality nominees (Conspirators perhaps?), and deterred others from accepting nominations if asked.  It has also furthered the politicization of the judiciary by making confirmation contingent upon satisfying a minority of the Senate.

The filibuster of judicial nominees is bad for the courts.  It was a bad thing when first used against Miguel Estrada, and it is bad now.  Of course it’s rich for Senator Reid and his colleagues to complain about the use of a tactic they themselves deployed with relish (and used to defeat just as many nominees), but that’s politics (and Kerr’s law).  I have no idea how Senate Republicans are likely to respond if Senator Reid pulls the trigger, and how this could effect the ability of the Senate to conduct other business, but I won’t shed a tear for the end of judicial obstruction.  So go ahead Harry, make my day.  I am sure the next President will appreciate it.

UPDATE: Ed Whelan notes this tidbit from the NYT story:

Support has been building in the Democratic caucus to make the change, which would most likely affect federal judges and executive branch nominees like cabinet members. It would not affect the minority party’s right to filibuster Supreme Court nominees or legislation.

(emphasis added).  This is just comical.  If it’s appropriate for a majority to end the filibuster of judicial nominees on a party-line vote mid-session, then it’s appropriate for a majority to end the filibuster of judicial nominees on a party-line vote mid-session.  So if Harry pulls the trigger, there will be no filibusters of Supreme Court nominees either.  So I guess Senate Democrats have to ask themselves one question: “Do we feel lucky?”  Well, do ya?