Bench Memos

Law & the Courts

Senate Democrats’ Long March to Change the Confirmation Process, Part III

The Supreme Court in Washington, D.C., June 25, 2018. (Toya Sarno Jordan/Reuters)

Senate Democrats have been on a long march to change the process for evaluating a president’s judicial nominations. They changed the substantive standard in the mid 1980s by conditioning confirmation on how a nominee might be expected to vote on specific issues. They began changing the procedural ground rules in 2001. Previous posts (here and here) examined two ways that they turned previous confirmation practice on its head. Here’s another.

The Constitution gives to the president the power to nominate and, with the consent of the Senate, the power to appoint judges. America’s Founders intended that the Senate’s role of “Advice and Consent” would be a “silent operation,” checking the president’s appointment power to prevent “the appointment of unfit characters.”

The Senate, like the House, was originally designed so that the majority could work its will. The Senate’s original rules, therefore, allowed a simple majority to end debate and vote on a pending matter. That changed in 1806 when, by oversight rather than intention, the simple majority rule was dropped but not replaced. Since then, ending debate has required between a supermajority (60 percent to two-thirds) and unanimous consent (100 percent).

The filibuster became a central feature of the Senate’s legislative process but was never seen as part of its confirmation process for nominations. By 2001, there had been only four filibusters of judicial nominations and three of them were later confirmed.

That changed when Senate Democrats met in 2001 to, as the New York Times put it, change the confirmation ground rules. Their plan to implement Democratic Leader Tom Dashcle’s vow to use “whatever means necessary” to defeat Republican judicial nominations included, for the first time, using the filibuster to defeat nominations that would otherwise be confirmed. In just 15 months during the 108th Congress, from March 2003 to June 2004, Democrats used the filibuster against judicial nominations made by President George W. Bush five times as often as it had been used against all previous judicial nominees throughout American history combined. Current Democratic Leader Charles Schumer (D., N.Y.) voted 25 times during that period to filibuster Republican judicial nominations.

Between the 108th Congress and the 112th Congress — the comparable period during President Barack Obama’s first term — judicial nomination filibusters declined by 65 percent and confirmations rose by nearly 10 percent. In other words, the judicial confirmation process was becoming less contentious and more productive. But Democrats were not finished changing the confirmation ground rules.

Some of President Obama’s agenda could only be achieved through rules created by unelected bureaucrats that would have to be approved by unelected judges. To that end, he went to unusual lengths to stack both executive-branch agencies and the courts that would review their rules. He made appointments to agencies such as the National Labor Relations Board that were declared unconstitutional by the Supreme Court. He also directed Senate Democrats to abolish nomination filibusters so he could appoint judges who would look favorably on his administration’s regulations, and Senate Democrats complied. In November 2013, the Senate voted 52-48 to affirm a ruling by the Senate’s presiding officer that the words “three-fifths” in the cloture rule actually meant “simple majority” (yes, you read that right). The ploy worked, and they were able to confirm three judges to the court with jurisdiction over many agency rules and regulations.

If it sounds strange to pretend that 60 percent equals 51 percent, it is. But it shows how far Democrats will go to change the confirmation process.

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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