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.

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