Bench Memos

Law & the Courts

The Democrats’ ‘Whatever Means Necessary’ Strategy

Tom Daschle (Kevin Lamarque/Reuters)

The Senate’s process for evaluating judicial nominations will undergo a real stress test with the coming nomination to replace retiring Supreme Court Justice Anthony Kennedy. That process, already convoluted and confusing, has been drifting off course for nearly two decades.

Within days of President George W. Bush taking office in 2001, Senate Democratic Leader Tom Daschle (D., S.D.) vowed to use “whatever means necessary” to defeat Bush judicial nominees. According to the New York Times, Senate Democrats set about implementing a plan to “change the ground rules” of the confirmation process. My previous post here identified one of their innovations and here’s another.

The Senate can confirm a nomination two different ways. The quick way is by unanimous consent or a voice vote; it takes about 30 seconds and does not require the presence of all Senators. The slow way is by a roll call, or recorded, vote; it takes about 30 minutes and requires the presence of all Senators. For more than two centuries, the “regular order” of the judicial confirmation process was to reserve the more time-consuming steps for the most controversial nominees. Between 1789 and 2000, for example, the Senate confirmed more than 3,100 judges, 97 percent of them without opposition and 96 without a roll-call vote.

The Democrats’ “whatever means necessary” strategy included turning this tradition on its head. During Bush’s first term, for example, 96 percent of his judicial nominees had no opposition but the percentage confirmed the slow way shot up from four percent to 75 percent. Over his first term, 93 percent of his judicial nominees were confirmed without opposition but 65 percent of them had to go through a time-consuming roll-call vote.

A roll-call vote may not seem like much, and it’s certainly not as bold and newsworthy as a filibuster, but they add up and it’s easy to see how something that seems ordinary can gum up the confirmation gears. Today, with a Republican back in the White House, Democrats have forced the Senate to take roll call votes on 95 percent of President Trump’s judicial nominees. With dozens of nominees backed up waiting for approval, and judicial vacancies across the country at record highs, returning to this “whatever means necessary” strategy is taking its toll.

Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.

Most Popular

Elections

The Democrats’ Disastrous CNN LGBT Town Hall

A few days after Donald Trump committed the worst foreign-policy blunder of his presidency by betraying America’s Kurdish allies in northern Syria, former vice president Joe Biden, the elder statesman and co-frontrunner in the Democratic presidential primary, was on a national stage talking to CNN’s primetime ... Read More
Politics & Policy

Fox News Anchor Shepard Smith Resigns

Fox News Channel's chief anchor, Shepard Smith, announced on air Friday that he would be resigning from his post after 23 years with the network. “This is my last newscast here,” said Smith. “Recently, I asked the company to allow me to leave Fox News. After requesting that I stay, they obliged.” He ... Read More
White House

What Is Impeachment For?

W hat is impeachment for? Seems like a simple question. Constitutionally speaking, it also appears to have a simple answer: to cite and remove from power a president guilty of wrongdoing. Aye, there’s the rub. What sort of wrongdoing warrants removal from power? I’d wager that the flames of ... Read More
Elections

Beto Proposes to Oppress Church with State

Beto O’Rourke’s presidential campaign is within the margin of error of non-existence, but in his failure he has found a purpose: expressing the Democratic id. His latest bid for left-wing love came at a CNN forum on gay rights, where he said that churches that oppose same-sex marriage should have to pay ... Read More
NR Webathon

Don’t Let Michael Mann Succeed

I  enjoyed the running joke of Jarndyce v. Jarndyce in the great Dickens novel Bleak House, back when I first read it. Little did I know that one day I and the magazine that I love would effectively be caught up in a version of that interminable case, courtesy of a litigious climate scientist with zero regard ... Read More