The judicial filibuster is dead. So, too, is the debate about which party will stop at nothing to get its way in the battle over judicial nominations.
When Senate Democrats originated the practice of filibustering judicial nominees during George W. Bush’s presidency, Republicans were tempted to use the nuclear option to kill the judicial filibuster and approve nominees with a simple majority vote. But after much debate and hand-wringing, Republicans decided that short-term expediency could not justify destroying the filibuster, a tradition that for centuries made the Senate a more deliberative and bipartisan body than the House.
Democrats have been similarly tempted in recent weeks as Senate Republicans filibustered three D.C. Circuit nominations designed to flip the second most important court in the land from bipartisan — a 4–4 Democrat-Republican split — to a 7–4 rubber stamp. Conventional wisdom on the Hill said that Harry Reid and his colleagues would not be so reckless and dismissive of Senate tradition as to follow through on their nuclear-option threats. Conventional wisdom underestimated Harry Reid’s ruthlessness.
In deference to the conventional wisdom and the need for a united front, I avoided publicly expressing my concern that Democrats would stop at nothing to pack the D.C. Circuit. Similarly, I would be happy to focus only on the good that will come out of ending judicial filibusters: the opportunity to put more Thomases, Scalias, and Alitos on the Supreme Court — the Supreme Court exception in today’s rule change will last only until the next Justice retires — and the political benefits of elevating the judges issue.
But before I get to the substantial silver lining, honesty requires me to acknowledge that, in the short term, the nuclear option dealt a blow to those of us fighting to limit the damage Obama does to the courts. The immediate impact will be to turn the D.C. Circuit — often the only check on a president’s executive power — into a rubber stamp for Obama’s unilateral rewriting of statutes, his questionable executive orders, his overreaching agency regulations, and his other Nixonian abuses of executive authority.
Over a somewhat longer term, my concern is that the moderating force that was exerted on Obama’s judicial nominations by the filibuster threat is gone. As a result, expect to see more nominations of radicals like Goodwin Liu and a faster remaking of the entire federal judiciary.
Perhaps my biggest concern is that a Supreme Court vacancy will occur before Obama leaves office. As I wrote earlier this year, High Court vacancy in the next three years is more likely than people realize, and if it happens, Obama now has a free hand to appoint a fifth unabashed liberal to the Court. The result would be a return to the bad old days of the Warren Court.
And now for the good news: Democrats’ unprecedented use of the nuclear option ensures that judicial nominations — an issue that typically works to the GOP’s advantage — will be a major issue in the 2014 Senate elections and the 2016 presidential election. Now that there are no checks on a president and Senate majority working together to remake the courts, the importance of controlling the Senate and the presidency is magnified for voters who care about abortion, gay marriage, guns, and the other issues that play out in the courts.
The Senate’s red-state Democrats, who can no longer hide behind cloture votes and will now be forced to openly support or oppose Obama’s most radical judicial nominees, have a lot to lose from Reid’s brazen move. It is no coincidence that Senator Mark Pryor (D., Ark.), who is facing a tough reelection fight, voted with Republicans today after facing a barrage of ads tying him to Obama’s worst judicial appointments. Opponents of other red-state Democrats running for reelection next year — Landrieu, Hagan, and Begich for example — will surely take note.
I am worried about the consequences of killing the judicial filibuster. But I am also hopeful that it marks a return to the political dynamics of a decade ago, when Karl Rove said, “There’s no doubt in my mind that we won races all throughout the country [on the judges issue].”
— Curt Levey is president of the Committee for Justice, whose primary mission is restoring a constitutionalist judiciary.
NRO’s home for judicial news and analysis.