Bench Memos

My Perspective on Filibuster Abolition—Part 2

Continuing from Part 1:

2. I’ve been an opponent of the judicial filibuster all along—on policy grounds, not constitutional grounds—and I’ve supported the filibuster of Obama nominees as a means of getting rid of the filibuster in the long run. (As the Wall Street Journal puts it today, “The only way to deter bloody-minded Democratic behavior is to treat Democrats as they treat Republicans.”) So although I think that the timing of the abolition is unfair—and that its extension to executive-branch nominees may be particularly damaging to the healthy give-and-take of White House-Senate relations—I welcome its long-term consequences for the judicial-confirmation process. Let me explain why (in this post and the next).

3. Abolition of the judicial filibuster essentially restores the operational status quo that existed before Senate Democrats launched their unprecedented filibuster campaign in 2003. That’s exactly what Senate Republican leadership and nearly all Republican senators were aiming to do when they tried to abolish the judicial filibuster in 2005, only to be undermined by the Gang of 14 agreement. So what can be so objectionable about that status quo ante as a long-term rule?

4. Let me illustrate how that status quo operated by drawing on my experience working on judicial nominations for Senator Orrin Hatch (then ranking member of the Senate Judiciary Committee) during the first two years of the Clinton administration, 1993 and 1994. Republicans were outnumbered in the Senate for most of those two years by a 56-44 margin.

Senator Hatch and other Republicans had especially strong objections to two of President Clinton’s federal appellate nominees during those years, Rosemary Barkett and Lee Sarokin. Yet we never gave a thought to resorting to the filibuster. Instead, we made exhaustive cases against both nominees (see here and here for samples) in order to inflict political costs on Clinton for nominating them and for Senate Democrats who would support them.

Barkett (who had the misguided support of her home-state senator Connie Mack) was confirmed by a 61-37 vote, but the fact that senior Democrat (and former majority leader) Robert Byrd voted no is a sign of the traction that we obtained. Sarokin also was confirmed, 63-35, but six Democrats voted against him, including Democratic whip Wendell Ford and Harry Reid. Indeed, Ford and two other Democrats were so eager to be on record as ardently opposed to Sarokin that they, to our surprise, arranged for a cloture vote so that they could say that they even voted against cloture on him. (Republican leadership supported the cloture motion, which received 85 yea votes.)

In the Senate elections in 1994, Republicans in several key races made Clinton’s judicial nominations part of their campaign. I won’t claim that judicial nominations were a leading factor in the Republican takeover of the Senate in that election, but, from what I recall from the judgment of contemporaneous commentators, they certainly appear to have helped. Indeed, poor Judge Sarokin, in resigning from the bench in mid-1996, expressed his concern that his judicial record would be used against Clinton’s re-election effort.

My point here is that up-or-down votes on a Democratic president’s objectionable judicial nominees can and should be political winners for Republicans. It’s useful to force Democratic senators, especially in red states, to the difficult choice between supporting the nominees (at the risk of alienating many of their constituents) and opposing the nominees (at the cost of alienating their colleagues and the president). By contrast, filibusters protect Democratic senators from ever having to make that choice. (It’s much easier to explain away a vote against a filibuster.)

I don’t mean to contend that this approach is without its obvious downside. Barkett, after all, misserved on the Eleventh Circuit for some 19 years. But the political upside is too readily ignored.

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