Judicial Obstruction -- Three Different Kinds:

Some defenders of the judicial filibuster suggest this is simple payback for Republican mistreatment of Clinton nominees from 1995-2000. Others argue Senate Democrats have no choice because other, more traditional means, of blocking nominees (e.g. blue slips) have been curtailed. Implicit in some of these arguments is the view that blocking a judge is blocking a judge, no matter how it is done. Matthew Yglesias, for instance, argues that “If we're talking about blocking judges, we should be talking about all the ways (blue slips, failure to schedule hearings, etc.) that nominees have been blocked from getting floor votes.”

While I agree with the principle that all nominees should get hearings and a floor vote within a reasonable period of time – and that it was wrong for both Republicans and Democrats to block action on Clinton, Bush, and Reagan nominees in years past – I am not convinced that all forms of delay are equivalent, or that principled opposition to one suggests principled opposition to them all. It seems to me that there are significant differences between the majority’s control of the Senate agenda, the traditional use of blue slips by home state Senators, and a minority filibuster, and that it is reasonable to oppose the obstruction or delay of nominees through some of these methods but not others.

Majority control of the Senate entails certain prerogatives. Among them are the control of committees and the Senate’s agenda. The party in control of the Senate decides what business to conduct and when to conduct it. As a general matter, it is not “obstruction” when the Senate majority refuses to take up issues supported by the President, as the Senate is entitled to have its own priorities. Thus, one should expect that a Senate majority will consider nominees it likes more rapidly than those it does not, and that nominees from a President of the same party will be confirmed more rapidly than those of a President of the opposition. Again, this sort of agenda control is the prerogative of the party in control.

I believe the Senate majority should make a reasonable effort to consider the President’s nominees to the judicial or executive branch without undue delay, but the majority must enjoy some leeway here as it is the majority. The Senate majority may ignore the President’s legislative initiatives because it has other legislative priorities. That is the majority’s prerogative. Yet only the President can nominate. Therefore if the Senate delays positions necessarily remain unfilled, potentially impeding the operation of the other coordinate branches. So while its traditional for Senate majorities to treat their own party’s nominees with greater dispatch, I do not think they should be obstructionist. If a nominee is truly bad, the Senate majority should hold a vote and defeat him, not bottle up the nomination in committee while a seat remains unfilled.

The one way Senators of a minority party blocked undesirable judicial nominees in the past was through the blue slip, yet this was limited to home state Senators. As practiced for decades, the policy worked like this. When the President nominated someone, a blue slip would be sent to the Senators from the state in which the nominee was to sit. The Senator would return the blue slip with an indication whether he or she supported or opposed the nominee. Traditionally, if the Senator returned a negative blue slip, or refused to return the blue slip at all, the nominee would not be confirmed. The blue slip thus gave home state Senators of either party an effective veto of judicial nominees that would sit in their states, and encouraged Presidents to consider the views of home state Senators when picking judicial nominees. While there is some dispute as to how consistently the blue slip rule was enforced in the past, there is no question that Republicans tightened the rule under President Clinton, and have effectively eliminated it under President Bush.

The blue slip is incredibly undemocratic. It allows a single Senator to block a judicial nominee. The justification for it is that a home state Senator has a disproportionate interest in judicial nominees that will sit in his or her state. In the case of district court nominees, this interest is quite large. With circuit court nominees, the home state interest is somewhat less, but still substantial. The blue slip is a traditional recognition that Senators are representatives of their states, as such, and that they should have some say about the administration of justice in the states they represent. I don’t much like the blue slip, particularly for circuit court nominees, but it is a Senate tradition, some would say “Senatorial courtesy,” observed more often than not for many decades. As such, it has its defenders.

The filibuster is the newest means deployed to block judicial nominees, and effectively imposes a supermajority requirement for judicial confirmation. Prior to the election of President Bush, it had never been used by a Senate minority to prevent confirmation of a judicial nominee enjoying majority support. The one nominee ever filibustered before, Justice Abe Fortas, was opposed by Senators from both parties, lacked majority support, and eventually resigned from the bench under an ethical cloud. It is most certainly not a precedent for the filibusters we have seen for the past few years. Given its lack of any historical pedigree, I find it hard to justify the filibuster on anything but consequentialist grounds. Its use is not simple payback, insofar as it was not used before, and instead represents an escalation in the fight over judicial confirmations. Some believe it is warranted because judges have life tenure, but this was not the constitutional design. Judges have always been confirmed by a simple majority, and I see no reason to change. Indeed, I find it hard to view the current filibuster as anything more than sour grapes.

To recap, I believe all judicial nominees of whichever party should be considered within a reasonable period of time from their nomination – a principle both parties have violated time and again over the past twenty years. Senate majorities and home state Senators have blocked or delayed disfavored nominees for some time, though minority filibusters have not been used. I believe one could support the Senate majority’s agenda control or even blue slips without defending the filibuster, as they are not all the same. I, for one, oppose them all.

UPDATE: This post was not intended as an attack on or defense of either party. As I have written before, I think both parties have engaged in unjustified obstruction of the other’s nominees. As I detailed in my posts on the history of the confirmation fights, here and here, Senate Democrats began blocking Republican nominees in the mid-1980s. Senate Republicans responded with a greater level of obstruction once they retook the Senate in 1995, and Democrats have upped the ante since.

Kevin Drum thinks I should have paid greater attention to the Republicans’ rule changes, particularly with regard to blue slips. I acknowledged the changes above, and would also note that the blue slip rule changes have not been as hard and fast as Drum might suggest. For instance, while Senator Hatch said it would require opposition from both home-state Senators to block one of Bush’s appellate nominees, Senator Edwards was still able to block any action on Terrence Boyle’s nomination all by his lonesome. The Senate Judiciary Committee only began to consider Boyle once Edwards had left the Senate. I would also add that it’s not entirely clear how Senator Specter is approaching blue slips for appellate nominees now. Again, I do not like the use of blue slips by either party. Nonetheless, I recognize that they represent a longstanding “Senatorial courtesy” of respecting the particular interests of home state Senators, and thus believe that they can serve a different purpose than other means of obstruction.

To reiterate my position in case I have not been clear: I think all of this obstruction is wrong; I would like to have seen all nominees of each party receive up-or-down votes; I am not particularly fond of the “nuclear option”; and I would welcome a deal to ensure prompt consideration of all nominees to take effect after the next presidential election.

In the end, I think Senator Pat Leahy (D-VT) had it right in 1998:

I have had judicial nominations by both Democrat and Republican Presidents that I intended to oppose. But I fought like mad to make sure they at least got a chance to be on the floor for a vote.

I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty.

I wish more Senators of both parties had followed this example then, and I wish more Senators would follow it now.

Related Posts (on one page):

  1. Kmiec on the Deal:
  2. Judicial Obstruction -- Three Different Kinds:
Kmiec on the Deal:

Pepperdine law professor Douglas Kmiec doesn't like the judicial nominations deal. He thinks it lacks principle and betrays the constitutional design. The founders would have disapproved of judicial filibusters, he argues, noting that "the framers specifically considered and rejected in the 1787 convention a 2/3ds Senate concurrence for judicial appointments." Kmiec further writes:

Anyone critical of the filibuster for denying the entire Senate its constitutional role should also be honest. Democrats were the first to deploy the filibuster in a grand way against the judiciary, but both parties had a myriad of alternative ways in which presidential nominations were prevented from reaching the floor at all. All these practices should be condemned as constitutional defaults. The default comes at the sacrifice of accountability, or what is popularly termed transparency. Filibusters denying full-floor action or bottling up nominees in committee both dangerously, as Hamilton warned, "shut up in private [and make] impenetrable to the public eye..." the judicial-selection process. . . .

When a minority of the Senate can delay or obstruct a fully-capable nominee by reason of partisan or ideological disagreement, "factions," as Madison called them, have taken over and will erode the independence of the judiciary.