Bench Memos

Unpromising Calls for Filibuster Reform

As someone who would welcome a return to the longstanding Senate practice that existed before Democrats launched their barrage of filibusters against President George W. Bush’s judicial nominees, I suppose that I should take heart from some events of the past week:

Last Tuesday, President Obama, as one of the seven thousand proposals in his State of the Union address, “ask[ed] the Senate to pass a rule that all judicial … nominations receive a simple up or down vote within 90 days.”

On Thursday, Senator Dianne Feinstein, at a Senate Judiciary Committee meeting, called for a return to the good ol’ days, when only three Republicans voted against Justice Ginsburg’s nomination to the Court and when Republicans invoked the general principle that “a President is entitled to his appointments.” (I’m quoting here, as I do elsewhere in this post, from the official transcript of the meeting.)  

And, as I discuss here, on Sunday the New York Times, in a house editorial entitled “Filibustering Nominees Must End,” executed its second 180-degree turn, as it embraced Obama’s call for the Senate to change its rules to require votes on judicial (and executive) nominees within 90 days.

As I’ve been arguing, once the filibuster of judicial nominees came to be regarded as legitimate, the best way for Senate Republicans to get Senate Democrats to reconsider their support for the practice was to use it against President Obama’s judicial nominees.  The dramatic reversals made by Obama, Feinstein, and the NYT are a testament to the efficacy of this strategy. By contrast, the path of unilateral disarmament that some urged would have accomplished nothing.

Still, I’m not hopeful that an entrenched bilateral agreement among senators to abolish the judicial filibuster can be reached—not even an agreement that would kick in only in 2013 (so that each side wouldn’t know which party’s president would immediately be disadvantaged).

One big problem is that an atmosphere of mutual distrust makes it difficult to strike a deal. Obama is hardly well positioned to dispel this atmosphere: As a senator, he took the lead role in the vicious and mendacious attack on (and unsuccessful filibuster of) Fifth Circuit nominee Leslie Southwick, and he voted to filibuster the Supreme Court nomination of Samuel Alito and the federal appellate nominations of Priscilla Owen, William Pryor, and Janice Rogers Brown. (Had Obama been in the Senate in 2003 and 2004, his list of filibuster votes would surely be much longer.)

Feinstein’s revisionist account of her own approach to Bush 43 nominees also doesn’t engender trust. Yes, Feinstein was on one or two occasions (including the Southwick nomination) a voice of genuine decency, but her more general claim that she “tried to do” what Senate Republicans had done with Ginsburg and “be respectful of President Bush’s appointments” (read “nominations”) is impossible to take seriously. How about her votes against cloture on the nominations of Alito (to the Supreme Court) and of Brown, Pryor (three times), Charles Pickering, Owen (four times), Carolyn Kuhl, and Miguel Estrada (seven times)? 

It may well be that the filibuster genie can’t be put back in the bottle—not, at least, until one side or the other achieves a decisive and enduring victory in the battle over the courts. But any senator (or president) who seeks to reform the confirmation process would get off to a more promising start by being candid about his or her own role in creating the mess we’re in. (And, yes, that goes for reformers from both sides of the partisan aisle.)

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