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Taking Nominations Seriously

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I have more on Obama’s forthcoming trio of appointments to the D.C. Circuit. While it’s likely that at least 2 and very possibly 3 of the nominees will be rejected, it was still worth doing:

The public is not the only potential audience, though. One effect of egregious Republican obstructionism of these nominees—combined with the persistent Republican unwillingness to confirm executive branch nominees—may further undermine political support for the filibuster within the Democratic Senate caucus. The fundamental problem is that the long-term interests of both the polity and the Democratic Party— i.e. severely curtailing or getting rid of that indefensible rule—clash with the immediate self-interest of individual senators, who are empowered by the Senate’s various anti-majoritarian procedures. The only way of overcoming this dynamic is for a majority of Democratic senators to perceive the costs of maintaining the filibuster as no longer justifying the individual benefits. If the Republican behavior in opposing Obama’s nominees is sufficiently egregious, there’s an outside chance that there may be enough support for Reid to invoke the so-called “nuclear option,” that is, a ruling that would make filibusters inapplicable to judicial and/or executive branch nominations. More likely, an escalation in the cycle of conflict would make it more likely that there would be majority support among Democrats for restricting use of the filibuster as the rules for the next term are created.

In Martin Scorsese’s classic Raging Bull, Joey LaMotta explains to his prizefighter brother Jake the benefits of agreeing to fight a young up-and-comer: “If you win, you win. If you lose, you still win.” The same is true of Obama’s strategy for the D.C. Circuit. If he wins by getting one or more nominees confirmed it’s a major win, and even if the Republicans are able to obstruct all three nominees this will have the potentially even greater benefit of putting the filibuster further on the road to oblivion.

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