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The Road to Nuclear Winter
Republicans did not initiate obstruction of judicial nominations. Have Democrats ended it?

Senator Chuck Schumer (left) and Majority Leader Harry Reid

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Jonathan H. Adler

On March 6, 2003, the first cloture vote to end debate on the nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit failed. Despite (or perhaps because of) the fact that Estrada was a widely respected appellate lawyer and former Supreme Court clerk with a compelling personal story who enjoyed bipartisan support, a majority of Senate Democrats would not allow an up-or-down vote on his confirmation. (The vote was 55–44 in favor, with four Democrats supporting cloture, which requires 60 votes.)

Senate Republicans tried for cloture on the Estrada nomination six more times that year before the nominee relented, pulling his name from consideration and returning to private practice. Thus Miguel Estrada became the first-ever judicial nominee defeated by a filibuster on the floor of the Senate. But he would not be the last.

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Senate Democrats would successfully block cloture on nine more of President Bush’s nominees before Republicans threatened to change the rules and eliminate the filibuster of nominations. Although a strong case can be made that filibusters are wholly inappropriate — indeed, extra-constitutional — when applied to judicial nominations, this threat became known as the “nuclear option” because mid-session rule changes are so rare, and such a clear violation of Senate norms. In the event, cooler heads prevailed. A deal was struck by the “Gang of 14” — seven senators from each party — to allow majority votes on several of the stalled nominees and end judicial filibusters for the remainder of the session. In the end, five of the ten filibustered nominees were confirmed.

Senate Democrats justified their obstruction of President Bush’s nominees by pointing to how Senate Republicans had sought to stall some of those nominated by President Clinton. They were right. Yet the obstruction of Clinton’s nominees was itself retaliation for Democratic efforts to block some of those nominated by Presidents Reagan and George H. W. Bush. Senate Democrats began their efforts to stall Republican judicial nominees in the mid-1980s in order to lessen the influence Republican presidents could have on the courts, and the process has been deteriorating ever since. Each side has participated in an escalating game of tit-for-tat, making it progressively harder to fill vacancies on the federal bench and even to attract qualified nominees. The numbers tell the story: 88 percent of Reagan’s appellate nominees were confirmed, followed by 79 percent of those nominated by President George H. W. Bush. Clinton saw 77 percent of his appellate nominees approved, but this number dropped to only 67 percent for President George W. Bush.

After President Obama’s election, the trend continued. Senate Republicans slow-walked Obama’s nominees when they could, but this did not take much; the Obama administration’s own laggardly approach to selecting nominees ensured that comparatively few nominees would be confirmed. Most of those the president nominated, however, made it through. President Obama saw 71 percent of his appellate nominees confirmed during his first term.

Senate Republicans also learned to utilize a tactic they had once scorned: the filibuster. As Senator Jeff Sessions explained in a 2009 op-ed, for Republicans to ignore the fact that “the rules had changed” would constitute “unilateral disarmament.” Thus, Senator Sessions explained, until there was an agreement to eliminate all use of the filibuster against judicial nominees, without regard for which party was making nominations, Senate Republicans would reserve the right to use the tactic. The op-ed left open the possibility of a deal to end nomination filibusters, but it was an opening Senate Democrats never pursued.

Law professor Goodwin Liu, nominated to a seat on the U.S. Court of Appeals for the Ninth Circuit, was the first of President Obama’s nominees blocked by a filibuster. Four more would follow: first Caitlin Halligan, and then three more D.C. Circuit nominees the president named in June – Robert Wilkins, Cornelia Pillard, and Patricia Millett. The successful Democratic filibusters of Estrada, Carolyn Kuhl, William Myers, Charles Pickering, and Henry Saad were now matched by an equal number of Obama’s nominees. It was truly tit-for-tat, and Senate Democrats decided they had had enough.

The same senators who had howled in disbelief when Republicans threatened to go nuclear now sang a different tune, as did the occupant of 1600 Pennsylvania Avenue — even though the president himself had supported judicial filibusters as a senator, and continued to vote against cloture for some nominees even after the Gang of 14 deal. Just as the investigations of President Clinton soured Democrats on the independent-counsel law, the defeat of President Obama’s nominees soured Democrats on the filibuster of judicial nominations.

Defenders of Senator Reid’s move claim Senate obstruction threatens the function of the judiciary. Were the Obama administration more diligent in making nominations, there would be a case. Yet the administration and Senate Democrats are more concerned about filling empty seats on the D.C. Circuit than in places where judges are actually needed. Of the nine judicial emergencies on federal appellate courts, none are on the D.C. Circuit, and only four have pending nominees. If the Obama administration were truly concerned with the administration of justice, it would not be focused on the D.C. Circuit.

However hypocritical Senate Democrats have been on the question of filibusters, it’s a good thing the nomination filibuster is gone. Until 2003 there was no precedent for a Senate minority to obstruct judicial confirmations. Judicial filibusters, if not actually unconstitutional, ran counter to the constitutional design. Confirming a judge should only take an up-or-down vote.

In the short run, the end of the judicial filibuster means quicker confirmation of President Obama’s nominees, at least for the next year or so. But the lack of a filibuster won’t help the president much if Democrats lose control of the Senate. The lack of a filibuster also means the next Republican president will have to worry less about what it takes for a judge to be confirmed. Senate Democrats claim their rule change does not apply to Supreme Court nominations (how convenient!), but this claim will not stick. When the next Republican president nominates another Clarence Thomas or Samuel Alito to the bench, Senate Democrats will have to muster a majority to defeat him — and that will be hard to do. So in the short run, Harry Reid’s nuclear maneuver helps President Obama expand his judicial legacy, but in the long run, ending the filibuster of judicial nominations is all to the good.

— Contributing editor Jonathan H. Adler is the Johan Verheij Memorial Professor of Law and director of the Center for Business Law and Regulation at Case Western Reserve University. He is the author, editor, or co-author of several books, including the just-released A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (Palgrave).



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