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On Filibustering Judicial Nominees—Part 1



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In last Friday’s Washington Post, Senator Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, offered a defense of the failed Republican effort to filibuster President Obama’s nomination of David Hamilton to the Seventh Circuit.  I’d like to outline here why I continue to oppose the filibustering of judicial nominees.  In the next post, I’ll explain, on the other hand, why charges of hypocrisy against Sessions and other Senate Republicans who voted to support the filibuster effort are unsound.

My twofold position on the filibustering of judicial nominees has been consistent from the outset of my blogging on Bench Memos (literally from my first-day post, in May 2005):  (1) the Senate rule that permits the use of the filibuster against judicial nominees is constitutionally permissible; but (2) resort to the filibuster against judicial nominees is a sharp departure from Senate practices, a bad innovation that ought to be suppressed.  Among other things, in September 2008, at a time when it was reasonable to expect both that Barack Obama would be elected president and that Senate Republicans would have sufficient numbers to filibuster judicial nominees, I stated at a Brookings Institution event my categorical opposition to “any effort to use the judicial filibuster,” even of an outrageous nominee.  (See pages 25, 40-41 of this transcript.)  I have repeatedly taken that same position since then, both in public events and in private meetings. 

The one exception that I would entertain is a filibuster that is reasonably calculated to achieve an end to judicial filibusters—by, for example, triggering cloture reform and establishing a new consensus that the filibuster is off limits.  (I’ll also clarify that I have no objection to senators’ forcing a cloture vote to take place.  Often, that will be the only way to ensure that reasonable time for debate on a nominee is provided.  But my preference would be that senators make their case against the nominee and then support cloture.)

My reasons for opposing the filibustering of judicial nominees include:  (1) The filibuster enhances the already-excessive influence of senators on judicial nominations, an influence that I believe (as I explained in this essay) operates to the detriment of quality nominations.  (2) I think that it’s important for Republican senators to make the public case against bad nominees, and not simply rely on procedural obstacles.  It’s too easy for a senator to give the appearance that he or she is standing strong by voting against cloture.  (3) A straight up-or-down vote usefully puts the political accountability on the majority party.

In my judgment, the strongest argument against my maintaining a position against judicial filibusters would be the assessment that Democrats had succeeded in making acceptability of the practice a fait accompli.  There are folks whose judgment I respect who made that assessment, but I didn’t share it.  Specifically, I believed that it was still possible to stigmatize the practice and to inflict political costs on those who resort to it.

Given the Democrats’ attainment of a filibuster-proof majority in the Senate, it seems to me to have been a foregone conclusion that the filibuster effort against Hamilton would fail.  So, with due deference to the parliamentary expertise of Republican leaders, I don’t see what the strategic goal of the effort was.  What it has, predictably, done is provide significant Republican endorsement—29 of the 40 Senate Republicans voted against cloture—of the acceptability of the judicial filibuster.  (In his op-ed, Senator Sessions attempts to confine the judicial filibuster to the “extraordinary circumstances” exception in the Gang of 14’s May 2005 agreement, but that standard seems hopelessly malleable.) 


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