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Don’t Fear the End of the Filibuster For Judicial Nominees

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Robert Wilkins is now the third nominee to the D.C. Circuit to be filibustered by the Republican minority. I blame Barack Obama and his unprecedented decision to “pack the court” by using his Article III powers to fill existing judicial vacancies.

Logically, this should compel Senate Dems to blow up the filibuster for judicial appointments, particularly since Republicans are essentially not even bothering to make a plausible case against individual nominees but are just opposed to Obama making nominations in principle. But I’m still skeptical that they’ll pull the trigger. I think this kind of fear might preserve the de facto supermajority requirement:

Democrats, in response, are using the same nuclear-option threat Republicans used in 2005 (and which Democrats used to open a blockade on executive-branch appointments earlier this year). That is certainly a troublesome remedy — it would give a president whose party controlled the Senate nearly unlimited leeway to seat ideologically congenial judges on the federal courts. The ideal solution would somehow compromise between the president’s absolute power to seed the judiciary and the Senate minority’s absolute power to blockade it.

Chait, at least, prefers the abolition of the filibuster for judicial nominees to the status quo. But I don’t really understand the fear of abolishing the filibuster because of what might happen. Two points seem relevant:

  • To see what would happen if the filibuster wasn’t used against judicial nominees, we would have to imagine a scenario…exactly like all of American history between the ratification of the Constitution and the filibuster of Abe Fortas nearly 200 years later.  It’s not clear why this was any worse than the current institutional arrangement.  Obviously, the Supreme Court did a lot of bad stuff during this period, but this wasn’t because of the filibuster.  (The awful white supremacist Supreme Court decisions of the late 19th century were the work of Republican nominees who were confirmed by huge majorities, often by voice vote.   Roger Taney was a mainstream Jacksonian Democrat; Peter Daniel, the one member of the Dred Scott majority who could reasonably be considered a Southern radical by contemporary standards, was confirmed 25-5. And so on.  Plessy and Dred Scott, like most bad Supreme Court decisions, are much more of symptoms of a bad political mainstream than causes, and hence are evils the filibuster is particularly unlikely to prevent.)   The only successful use of the filibuster in the history of Supreme Court nominees had, like most filibusters do, reactionary consequences, giving Richard Nixon one and perhaps two extra Supreme Court nominees.
  • A contemporary Republican president could, indeed, appoint a lot of horrible people given a Senate majority.  But since with the filibuster Bush not only got people like Janice Rogers Brown and Priscilla Owen confirmed to the circuit courts but Sam Alito, the most reactionary Supreme Court justice since James McReynolds, confirmed to the Supreme Court it’s not obvious to me how the filibuster is moderating Republican appointments.

Republican presidents will appoint awful judges with or without a filibuster. Which, as long as Democrats can do the same, is how it should be because elections matter and governments should be able to govern. There’s no reason to maintain the filibuster.

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  • Yah, that’s pretty convincing. It’s not immediately clear to me that Janice Rogers Brown is an improvement over Miguel Estrada, for instance ….

    • Anonymous

      There was never a choice between one or the other–we’re fortunate that we didn’t end up with both

      • Right. What I meant is that, trying to think of a Dem success w/ the filibuster, Estrada comes immediately to mind … and that was no great success.

    • timb

      I too found it convincing. Any world where that nutter (Rogers-Brown) can sit on the Court is a frightening world

  • Gregor Sansa

    Obviously, this post is correct; a situation with no filibuster is almost strictly better than one with a filibuster.

    But I’d be even happier with a temporary, decaying filibuster. That is, it would take 60, then three days later 57, then 54, then 51 (with the VP counting in each of those votes). That way, there would be time to build a movement against an odious nomination; by making the worst nominations more potentially politically costly, it might act as a restraint on the most outlandish of them.

    • Twitter suggest that Reid is claiming 51 votes to end the filibuster for exec and non-SCOTUS nominations. That makes a certain amount of sense.

      • Anonymous

        Unitl next year when say, Scalia or Bader-Ginsberg or Breyer or Kennedy step down for an unforeseen reason, then how much sense will the SCOTUS exception make?

        There’s no scenario where we don’t have eight justices for two years if that happens.

        • Disagree. SCOTUS nominations are too high-profile for the GOP to get away with the kind of obstruction they can pull with lower courts.

          • TribalistMeathead

            Yeah, they’ll just have to settle for whisper campaigns about the nominee’s sexuality based on the fact that they once played softball.

          • Anon21

            I agree. If a Justice dies in 2016, I could see them stalling to the finish line. But I don’t think the caucus as a whole (leaving aside Cruz and the rejectionists more interested in setting up future presidential campaigns/Fox news shows than pushing for conservative public policy outcomes) could possibly blockade a Supreme Court seat that opened in 2015 or earlier.

            • Fake Irishman

              On the other hand, if we win the damn election, we won’t have to worry.

            • lifetime appointment bitches and I stopped smoking

              hint that H. Clinton has one B. Obama on her short list for the SC and you might get an up and down before the next term

          • rw970

            Really? This seems like exactly the kind of thing they would do and largely get away with.

            I think we have to conclude by this point that the Republicans are willing to do anything short of violating express statutes to exert control over government, no matter how “icky” or untenable it seems to liberals. We have reached the end of conventions and norms. From here on out, it’s power vs. power.

            Especially when you compare the cost/benefit analysis of say, threatening to wreck the global economy because of Obamacare to the cost/benefit analysis of filibustering a SCOTUS nominee, it seems like a no-brainer. Unlike the economy, the Supreme Court will go on functioning just fine with 8 justices, and from a Republican perspective, depending on which Justices remain, may continue to function even better than before. The life of the average American voter will not be visibly affected one whit – it’s not like there’ll be thousands of government employees furloughed or any govt services that will cease. The only pressure they’d face in that situation would be from Senate Democrats’ willingness to abolish the filibuster. Failing that, of course they will and should filibuster SCOTUS nominees indefinitely, until a reliable President is put in place.

            • Anon21

              Simply speaking: difference in levels of media attention will push Senate Republicans from non-nutty states to demand a deal of some sort. They prefer to do their most determined “blow up the government” work outside the headlines, and blockading a SCOTUS seat for three years would be nothing but terrible headlines.

              • rw970

                I guess I’m having trouble imagining the 3 years of negative headlines. I’d say 3 weeks max; after that, it’s just the status quo. Already, Republicans are presenting this as basically preventing Obama from “upsetting the balance of the Courts.” This is a narrative tailored for the mainstream press’s he said/she said framing. We’ll get used to this just like we got used to the routine filibustering of legislation. So it goes.

            • Hogan

              the Republicans are willing to do anything short of violating express statutes

              And if they do, they can always get the Roberts court to say it’s OK.

    • I’m convinced the root fear of the Senate Dems isn’t vote totals, what they fear is chaos. They worry that they won’t be able to predict when votes will take place, that the Repubs will do all kinds of procedural moves to keep anything from passing. When in the minority the House Repubs did this, and it was a pain in the but to the Dems, but ultimately the House doesn’t have as many choke points, and despite endless calls of the chair and motions to adjourn and all kinds of other monkey wrenches, the majority can wait out the minority and get things passed.

      The problem, though, is it requires the majority to stay on the floor a lot, to rush back for votes, and not be able to enjoy a predictable process that doesn’t mess up your travel schedule and doesn’t require you to, you know, work hard. I’m not saying that’s what’s behind each person’s opposition to cracking down on the filibuster, but I suspect it’s behind some people’s sense that changing things would make the Senate more like the House, and they want to continue to believe they’re the world’s greatest legislative body, without having to stand on the floor and defend their legislation. Add in the fear that the crazies like Rand Paul and Cruz could make things more chaotic, and it’s probably fear of process than fear of results that’s behind much of the timidity on enforcing democratic norms in the Senate.

      • L2P

        Slight correction there: the Senate thinks of itself as the world’s greatest deliberative body! They don’t seem to care much about legislating – it’s the arguing they like to do.

        And that’s probably the biggest reason the filibuster will stay in place. The Senators can still argue all they want, AND they don’t have to vote on potentially troubling matters. It’s almost perfect, if your goal is deliberation rather than legislation.

        • But they don’t deliberate. Reforming the filibuster may require they do so, or at least pretend they’re deliberating. But now they don’t do much of anything in person, all of them together, and changing that may be something they fear.

          • L2P

            You may be thinking of the OTHER rules in the Senate (like holds, or the cloture threshold) that keep matters off the agenda altogether. There’s plenty of arguing about stuff on items that are filibustered. Heck, that’s why we know Leahy’s annoyed – he was complaining about the Republican filibuster, while they were filibustering.

            The only thing a filibuster does is prevent an item from being brought to a vote. That’s it. All the arguing and whining happens regardless of the filibuster.

            • I’m familiar with what happens in Congress. And I know the time Senators spend on the floor is a fraction of the time House members do. “Deliberating” in the Senate is showing up to the floor at a scheduled time and giving a speech for the CSpan cameras to an empty chamber.

          • Hogan

            But they don’t deliberate.

            They do. Just not on the floor of the Senate.

            • rea

              they are confirming judges with all the proverbial deliberate speed . . .

      • GoDeep

        Isn’t that why it was originally termed “the Nuclear Option” b/cs the minority party would blow up the Senate by resorting to every arcane rule in the book to gum up the works? That seems like what I read at the time tho perhaps its just an urban myth.

  • i think there’s an argument for filibusters on lifetime appointments, but insofar as filibustering has been completely normalized, it’s not hard to side with abolishing the filibuster altogether.

    after all, the other day, grassley tried the taunt that without a filibuster, there would be loads more scalias. since none of us believes that the gop wouldn’t eliminate the filibuster if the dems were actually emboldened enough to try one on said future scalia, i’m not sure what he thought the purpose of the threat was.

    • I suspect that the Senator doesn’t know either.

      But it sure sounded like a great talking point!

    • Alan Tomlinson

      The US could of course also dump lifetime appointments, which are a really stupid idea.

      Cheers,

      Alan Tomlinson

      • L2P

        Anybody got a time machine to go back to 1786? Or at least 1865? Otherwise, much as I agree with you I don’t see that changing anytime soon.

        • Gregor Sansa

          SCOTUS term limits could be done without amendments if you’re smart:

          1. Voluntary for current justices; but backed by temporary court-packing if they don’t volunteer.
          2. They keep the title and salary, but shift from hearing cases to administering the judicial branch (clearer rules on when to recuse, etc.)

          In that case, the term should be 18 years; that is, one new appointment every 2 years.

          • Jordan

            Maybe. You know who would rule on whether that is constitutional, though? :).

            • Rigby Reardon

              Hitler?

    • Scott Lemieux

      You’d think that Grassley’s hypotheticals would at least involve justices who weren’t, you know, confirmed by the Senate. And, yet, this logic actually seems to convince some Democrats — “Don’t abolish the filibuster or we’ll get the same people confirmed that we will get confirmed anyway and then where will you be?”

    • kindness

      It all changed when the opposition decided to act in a Parlimentary fashion, rather than the normal Republican (not the party) mode. A united opposition in such a scenerio wasn’t considered when the whole was created.

      That Republicans (the party) are more apt to stick together than Democrats is something that can’t be avoided. Democrats are like herding cats.

      And I am not alone in believing the first minute of the first term a Republican President had a Republican majority Senate that the filibuster rule would be history by the second minute of said term.

  • trnc

    At this point, I’d like to see all filibusters dashed on the rocks. They’re lose/lose for dems not just because they make actual governance almost impossible, but also because of the way filibusters are reported in the news. “Today, Democrats failed to pass the ______ bill by a 59-41 vote.” Most CNN, etc. viewers would never realize that it was 59 votes FOR the bill.

    • What, 4 out of the 7 people watching?

    • timb

      Also too, the way the media, which implicitly expects Democrats to care about governing and knows Republicans don’t care, would cover this McConnell filibuster strategy if Democrats did it.

      In 2005, this was the issue of EVERY newscast. Good luck finding it reported on the nightly news at the present moment

      • David Hunt

        In 2005, this was the issue of EVERY newscast. Good luck finding it reported on the nightly news at the present moment

        Things are only news if they’re not the norm. Republicans have a consistent strategy of filibustering Democratic legislation and appointments. Since it’s the norm it isn’t news. /Broderish Excuse

  • Anon21

    I don’t know if they’ll pull the trigger in the sense of changing the rules, but only because I suspect that they are prepared to do so, and that when the Republicans realize this they will cave, just as they did on executive nominations earlier in the session. Either way, the Senate Dems are not just going to abandon the D.C. Circuit.

    • efgoldman

      and that when the Republicans realize this they will cave

      I wish I shared your optimism.

  • JMP

    Really, I don’t get why some of the Democratic Senators think there is any point to preserving the filibuster for when they are in the minority when actually paying attention to the Republicans makes it very clear that they will eliminate the filibuster the minute it is advantageous for them to do so. They’re not going to preserve anything.

    • Anonymous

      I wouldn’t even put it past them to try and reinstate the filibuster during the lame duck session after an election that cost them a majority. There is no reverence for fair and effective process on that side of the aisle, only what will further their cause.

      • Anonymous

        “Them” republicans is probably clear from context, but not necessarily abundantly clear. Sorry for that.

    • jeer9

      It will never be “advantageous” for the Republicans to get rid of the filibuster as they already get everything they could possibly want as it is right now. It is an empty threat and part of the kabuki that Dems participate in hoping no one will notice. The filibuster will not be disappearing in the near future and certainly not until there is a significant progressive turnover in the Dem majority – which seems unlikely any time soon.

      • joe from Lowell

        Jeer thinks that the Republicans are getting “everything they possibly want” right now.

        Just wanted to highlight that.

  • FMguru

    Given the demonstrated modern Republican willingness to steamroller over well-established norms of legislative behavior, what are the odds that the Republicans would reward the Democrats for maintaining the filibuster by keeping it around the next time they have a majority in the chamber and the presidency? I’d say damn near zero.

    What benefit, exactly, do Democrats get from keeping the filibuster around?

    • I wouldn’t think of it as “Democrats.” There’s never been a public vote on something big, like eliminating the filibuster. One reason, I think, is it would show Reid has never had a solid majority of his own caucus. The institutional conservatives–not policy, but about the Senate–like Levin and Leahy don’t have as many allies now, with the departures of people like Byrd and Inuoye, but it only takes a few of them, combined with a unified GOP, to scuttle any changes.

      Reid’s playing the GOP tougher now than he did a few years ago. But that’s not a change in Reid as much as it’s a change in the composition of his caucus, with people like Murphy, Donnelly and Heitkamp, Baldwin and Warren over Lieberman, Bayh, Conrad, Feingold and Ben Nelson. He’s got a tougher caucus, so he can play tougher. But I think he’s still short of 50 votes for meaningful filibuster reform, and he may remain so until the next Senate, or longer.

      • Fake Irishman

        Right. But even old institutionalists like Leahy and Boxer are coming around. I think Reid might be one or two votes short of forcing a change, not five or six (Michigan friends, please send some notes to Levin).

    • joe from Lowell

      What benefit, exactly, do Democrats get from keeping the filibuster around?

      You’re asking the wrong question. What benefit, exactly, to Democratic Senators get from keeping the filibuster around? It isn’t the party as a whole that wants to keep it.

      The filibuster rules empower individual senators, not just minority parties.

  • Jose Arcadio Buendia

    (1) Another point relates simply to game theory: your unwillingness to do this cannot be based on a “shoe on the other foot” rationale when we know the Republicans will pull out all of the procedural stops given the chance.

    Majority Leader McConnell might be able to get Priscilla Owen on the Supreme Court with President Christie, but if Reid is the majority leader in 2015 (and even more likely in 2017), then no.

    (2) Yet another point: being the 51st vote for a terrible judge would just get that much harder. Blue state Republicans, like Susan Collins, might get themselves in trouble here. It’s easier to hide behind a filibuster.

  • Anonymous

    Celebrating Fifty Years of Cultural Marxism:

    http://www.youtube.com/watch?v=aQG5dYEW4gc

    Any questions?

    • Linnaeus

      I have one. Where’s the juche funk?

      • Fake Irishman

        Now that’s how you take down a troll.

    • Hogan

      Are you high?

    • JMP

      Shorter JenBob: Dear Mr. President, There are too many states nowadays. Please eliminate three. P.S. I am not a crackpot.

    • wjts

      Yes. Why don’t they make the kind of socks I like anymore?

      • Lee Rudolph

        And crispy bacon, like we used to have before the war!

        • wjts

          DAMN YOU, FIFTY YEARS OF CULTURAL MARXISM!!!

    • JMP

      By the way, follow JenBob’s link – it’s some straight-up racist bullshit, lamenting that black people exist, with some comments from actual modern Nazis claiming that communist = Jews who are secretly ruling the world.

      • Hogan

        Also, it seems that cultural Marxism caused the Vietnam war.

        • joe from Lowell

          And really big cheeseburgers.

    • DrDick

      Did it hurt much when your mama dropped you on your head from the fifth floor window?

    • rea

      You notice how all the earlier pictures show only white people?

      • Hogan

        JenBob doesn’t see color. Or shape. Or depth.

        • Lee Rudolph

          “What the Troll’s Eye Tells the Troll’s Brain”—science that could have been!!!

      • Linnaeus

        Yes. Yes, I did.

  • Bloix

    It’s a scandal that the Dems didn’t dump the filibuster 5 years ago. Think what the ACA would look like. With our luck, Reid will manage to get rid of it a week before the Republicans retake the Senate.

    • Fake Irishman

      and EFCA, and a climate bill, and the DREAM Act, and Peter Diamond on the Fed, and Caitlyn Hanigan on the D.C. Circuit, and a functioning NLRB for more than the last six months, and probably about 6-10 more Circuit judges and 30 more district judges (and about 10 fewer major obnoxious rulings), and a stimulus that had about $40 billion more in state aid, a good transportation bill, a budget passed for 2011 with another $1 billion for high speed rail, a delay of the SNAP cuts, extended unemployment insurance, the expiration of the Bush tax cuts for top earners at the end of 2010 and… OK, I want to cry now.

      • Gregor Sansa

        And probably at least one statehouse that didn’t fall to R in 2010 and get gerrymandered to shit. Which, combined with the above accomplishments, would probably mean 3-10 fewer Rs in the House.

        Yes, crying sounds good.

        • Fake Irishman

          Not to mention an additional 10-15 GOPPers not in the House from limited losses before 2010 election and 2 more Dem Senators (probably from Penn. and Ill.) and at least two more governorships (OH and Florida) and possibly 3 (Wisconsin — imagine how great that would be)

  • MikeJake

    Majority rule, how does it work?

    • DrDick

      Don’t ask Congress.

  • Sly

    But since with the filibuster Bush not only got people like Janice Rogers Brown and Priscilla Owen confirmed to the circuit courts but Sam Alito, the most reactionary Supreme Court justice since James McReynolds

    To be honest this doesn’t actually say very much, because McReynolds set an almost impossibly high bar for being the biggest asshole of any Court.

  • tsam

    I tend to wonder if people would be a bit more careful with their votes, knowing that without a filibuster, the average Senate Repig would cheerfully approve another crazy fuck like Scalia…

    HAHA! No they wouldn’t. Most people don’t even know how the process works.

    I give up.

  • Paul Gottlieb

    You leave out one obvious point: With a party dominated by people like Ted Cruz, Mike Lee and Marco Rubio, if the Republicans get a simple majority in the Senate, the filibuster will be abolished in the first five minutes of the first session.

    • Julian

      I’ve been wondering the exact same thing ever since I read the NYT story. Repubs warn Dems that Dems sure will be sorry if the Dems get rid of the filibuster, because if Republicans take hold of the senate and white house, Dems will miss the filibuster …

      Which assumes the Repubs wouldn’t just get rid of it. Which is an insane assumption.

    • joe from Lowell

      It would be extremely stupid for right-wingers to abolish the filibuster. It has always functioned much more to prevent progress than to protect it.

      That doesn’t mean the people behind the government shutdown strategery won’t do it, though.

    • mds

      if the Republicans get a simple majority in the Senate, the filibuster will be abolished in the first five minutes of the first session.

      First, I presume you mean “if they win the White House” as well. Second, I’m with jfL: Not if cooler heads prevail. When you look at 2001 to the present, it’s easy to see that the filibuster has been pure gold for Republicans. I suspect they’d take a wait-and-see attitude, and if Senate Democrats suddenly start acting consistently like an opposition party, abolish the filibuster at that point. Since Senate Democrats have previously proven unwilling to oppose unbalanced tax cuts for rich people, or right-of-Franco Supreme Court nominees whose legal reasoning is pure asspull, what would Senate Republicans have to lose by waiting? While if they blow it up immediately, someday Dems might just have the White House and large Congressional majorities again and actually be able to enact the agenda they were elected on. And then where would democracy be?

  • jefft452

    “Republican presidents will appoint awful judges with or without a filibuster. Which, as long as Democrats can do the same, is how it should be because elections matter and governments should be able to govern. There’s no reason to maintain the filibuster”

    Hear! Hear!

  • efgoldman

    Unlike before the 2012 election, when it was pretty clear that Reid either didn’t have or didn’t want the votes to shitcan the filibuster, i have no sense at all how things will go this time.
    If they do change the rules, and I’m Obama, I get a list of every vacancy on every federal court and appoint people to every one of them. Get the confirmations done before next November, let Yertle the Turtle and Tailgunner Ted and the rest scream like the stuck pigs they are. Fuckem. If they get a majority in the senate either in 2014 or 2016, and some GOBP thief or other gets elected preznit, they’ll do the exact same thing.

    • Fake Irishman

      Notice how Obama has been really picking up the pace of his nominations in 2012 — we’re up to about 5 or 6 a month now.

  • Joe

    Feinstein, who I take as a traditionalist sort, was reported at TPM as being for change here. Seemed to me a notable sign.

    Meanwhile, the USSC split 5-4 (with Breyer writing the dissent) to not vacate the stay of the district opinion partially blocking the new abortion law in Texas. Scalia wrote a concurrence to tweak the dissent, joined by Alito.

    http://www.supremecourt.gov/orders/courtorders/111913zr_6i79.pdf

    h/t Twitter, a reporter also noting in a public appearance Sotomayor supported more diversity in the courts — “people w/ defense backgrounds or civil rts or small practice or solo practice.”

  • Sadly, I think if Reid ends the filibuster it won’t be any of the motivations I read above (tl;dnr them all).

    I think Reid is gauging the likely 2014 election results and his working margin is not going to grow. If they are going to act they need to do it BEFORE any losses next November. Doing it after a marginal or big loss won’t fly.

    And even though he says he would exclude USSC justices from the list that’s exempt from the filibuster, I think the prospect of 2 more openings in 2015/16 means he needs to have some prior momentum on getting the lower court appointments cleared.

    However, the smart money still has to be put on more kabuki and no real change. Unless Udall announces they have the votes, then you know the kabuki is done and reform’s dead for sure.

  • GoDeep

    I was on the fence abt this one, thinking that the filibuster has prevented all sorts of bad nominees from making it to the court, but I think you–and GOP intransigence–has convinced me.

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    • Oh no. Beardo McHitlerpants thinks the Democrats have overreached.

  • joe from Lowell

    Wouldn’t it be ironic if the consequence of this Republican obstructionism was to leave the filling of these seats to a subsequent Democratic President, who makes the composition of the courts a higher priority and puts the full weight of the White House behind the confirmation of a roster of fire-breathing liberal judges while they appear before a post-2016 Senate with an even larger Democratic majority?

  • markmann

    Why do ANY Democrats (and seemingly Scott) assume that if the Democrats do not explode the filibuster now, then they will be able to use it when the Repugs get a majority? The Repugs talked about the nuclear option with MUCH less provocation than exists now. The filibuster is gone: the only question is when. And I suppose who will be blamed.

    • Snoe

      I don’t see how SL is making that assumption. He doesn’t address your scenario at all, really, that I can see.
      I agree your scenario’s likely*, BTW, and that this is a further argument against Democrats retaining the filibuster. I just wouldn’t read too much into SL’s not mentioning it here.

      *But also self-defeating for Republicans in the long term, as Joe from Lowell states above.

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