In my new Confirmation Tales post, I turn to Bill Clinton’s effort to begin filling the 100 lower-court vacancies that he inherited from George H.W. Bush, thanks in large part to Senate Democrats’ unprecedented obstruction of Bush’s nominations. As Clinton pursued his strong commitment to demographic diversity, Senate Republicans were learning to fight judicial nominees on the ground of judicial philosophy. An excerpt:

Senate Democrats held a 56-to-44 margin in the Senate, so I had little hope that we could vote down any of Clinton’s judicial nominees. Nor did we ever give a thought to trying to garner 41 votes to filibuster a nominee—that is, to prevent the 60 votes needed to obtain cloture (the formal step under the Senate rules that precedes a final confirmation vote). Although judicial nominations were technically subject to the 60-vote cloture threshold, there was a strong bipartisan consensus that the filibuster should not be deployed against judicial nominations. The existence of that consensus is perhaps best illustrated by the fact that there was no cloture vote on Clarence Thomas’s Supreme Court nomination in 1991, even though 48 senators (more than the 41 needed to defeat cloture) voted against his confirmation.
Our aim was to make Clinton and Senate Democrats pay a political price for nominating and confirming bad picks. A big reason that I had signed on with Senator Hatch after my clerkship with Justice Scalia was to assist Hatch and other Republican senators in making the case for conservative judicial principles and against liberal judicial activism.
Republican senators had very little experience opposing liberal judicial nominees, as Republican presidents had held office the past twelve years and twenty of the past twenty-four. What’s more, many of them had drawn from the defeat of Judge Robert Bork’s Supreme Court nomination in 1987 the lesson that fighting judicial nominees on the ground of judicial philosophy was a losing political proposition for conservatives. I was eager to demonstrate otherwise.

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