Harry Reid is set to “go nuclear.” He wants to end the filibuster as it applies to appellate court nominations — not by a two-thirds vote of the Senate, as Senate rules require, but by a simple majority. And given the short memories now in evidence, he may just succeed.
On Monday, for the third time in less than a month, Senate Republicans filibustered an Obama nominee to the Court of Appeals for the D.C. Circuit. That’s the court that’s checked the president more than once, as when it said he couldn’t make “recess appointments” when the Senate wasn’t in recess. So in a Tuesday closed-door lunch, Reid moved closer to ending the practice, and it’s reported he picked up crucial support from California Democratic senators Dianne Feinstein and Barbara Boxer along with Judiciary Committee chairman Patrick Leahy among others.
The hypocrisy here should not go unnoticed. Although the filibuster for legislation has a long history, prior to 2003 it was seldom used to block executive-branch nominations — and appellate-court nominees in particular. In fact, Democrats themselves began using it this way in the 108th Congress, after they lost the Senate in the 2002 midterm elections. Here’s the backstory.
Start with Bush v. Gore, the Supreme Court’s December 2000 decision that effectively decided the presidential outcome, creating a firestorm among Democrats, especially among the legal professoriate. On January 13, 2001, for example, 554 professors from 120 law schools took out a full-page ad in the New York Times condemning the Court’s majority for having acted not as judges but as “political proponents for candidate Bush.” And at a Democratic retreat a month later Yale’s Bruce Ackerman urged members not to confirm a single Bush nominee for the Supreme Court until after the 2004 elections.
Democrats got their break in May when Vermont senator James Jeffords left the Republican party. That switched control of the Senate to the Democrats, who immediately turned their attention to the eleven appellate court nominees then before the Senate Judiciary Committee, two of them Democrats — a gesture from Bush. Those two were immediately confirmed. The rest would not even get hearings. Instead, Democrats began calling for “litmus tests” — explicit demands that nominees state their views on everything from abortion to affirmative action to Congress’s unquestioned power to regulate anything and everything.
But the near lock-down on appellate-court nominations did not end with the 2002 midterm elections, which switched control of the Senate back to the Republicans. It was then that Senate Democrats began the unprecedented filibustering of appellate-court nominations. The most egregious case was that of Miguel Estrada, whose life story was pure American dream. First nominated by President Bush in May 2001, Estrada finally withdrew his name from further consideration some 27 months later, after seven failed cloture votes in the next, 108th Congress.
Things came to a head early in the 109th Congress when Republicans themselves, still in control of the Senate, threatened finally to “go nuclear” — to end the appellate-court filibusters Democrats had introduced only in the previous Congress. That was headed off when the bipartisan “Gang of 14” reached a compromise: Democrats would filibuster nominees only in “extraordinary circumstances,” they agreed, and Republicans would not use the nuclear option. That compromise held for the rest of the 109th Congress — though not without difficulties — but it became moot after Democrats regained control of the Senate following the 2006 midterm elections since they no longer needed to filibuster Bush nominees.
In sum, after the 2000 election was decided, Senate Democrats sat on their hands for two years as Bush appellate-court nominees twisted in the wind. In the minority after the 2002 elections, those Democrats then initiated the filibuster for many of Bush’s nominees. Only after the 2005 Gang of 14 compromise was imposed did things settle down. And after the 2006 elections, Democrats no longer needed to filibuster.
So is the Republican use of the filibuster today simply fair turn-around — with Democrats in no position to complain when Republicans use tactics they themselves introduced? If so, that would be enough to illustrate the hypocrisy of today’s Democratic protests. But that’s not what’s at issue here. In the D.C. Circuit matter, which has driven Senator Reid to the nuclear option, Republicans are not raising ideological objections to Obama’s nominees — as Democrats did when they filibustered Bush’s picks. Their objection, rather, is that these judges are not needed, because the workload of the court is so light. In fact, speaking of hypocrisy, Democrats, in the minority in the 109th Congress, used that very rationale to urge Judiciary Committee chairman Arlen Specter in a July 2006 letter not to confirm any additional Bush nominees to the D.C. Circuit — and none was confirmed after that letter from Senators Leahy, Feinstein, Schumer, and Durbin was sent, all of whom are still on the committee. Yet now, when the court’s workload is even lighter, Democrats cry foul when Republicans point that out.
In fact, look at the numbers from the Administrative Office of the U.S. Courts. In 2006, written decisions per active judge had declined by 17 percent since 1997. Since 2006 they have declined another 27 percent. In 2006, the total number of appeals filed had declined by 10 percent since 1997. Since 2006 they have declined another 18 percent. The Administrative Office ranks the twelve circuits using various caseload benchmarks: 2013 is the 17th straight year that the office has ranked the D.C. Circuit last on both appeals being filed and appeals being terminated. There simply is no need for more judges on the D.C. Circuit when those there now do not have enough to do — unless, of course, the aim is to have a bench more sympathetic to rule by presidential diktat, which may be precisely why Senator Reid wants to go nuclear.
— Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies.