June 13, 2013
President Obama announces the nominations of, from left, Robert Wilkins, Cornelia Pillard, and Patricia Ann Millet, to the D.C. Circuit Court of Appeals. (Evan Vucci/Associated Press) President Obama announces the nominations of, from left, Robert Wilkins, Cornelia Pillard, and Patricia Ann Millett, to the D.C. Circuit Court of Appeals. (Evan Vucci/Associated Press)

Political scientist Sarah Binder has some helpful charts out today about judicial nominations obstruction. There’s some good news for both sides in her data, but the bottom line remains that, at the very least, Republicans have ratcheted up this form of obstruction a bit more, and there’s a case that it’s really unprecedented.

The problem with analyzing these things objectively is that there are multiple indicators. How many nominations are defeated? How many are delayed, and by how long? At the same time, there’s the factor of Senate majorities to consider. All else being equal, and whatever one thinks about the filibuster, it’s hard to argue with the intuition that a president with a unified party and 55 or 58 or 59 same-party senators should have an easier path to having his nominees confirmed than a president with 49 or fewer same-party senators. There’s even the factor, as Binder points out, of the quality of the nominees; surely a president who selects moderates should expect less opposition than one who selects ideological extremists, but those sorts of things are almost impossible to study objectively (although at least one political scientist has an index which shows record obstruction during Obama’s presidency).

Overall, I think there are three things we can say with some certainty:

1. Obstruction of judicial nominations, both confirmation rates and time until confirmation, is at or near historical highs during the Obama years.

2. Requiring 60 votes for confirmation has spread from some Circuit Court nominees to virtually all judicial nominees — although not all Republicans join in, so in contested nominations there are at least some Republicans who may vote for cloture (thus helping get to 60) while voting against confirmation.

3. Binder doesn’t mention in this post “blue slip” issues in getting nominations made in the first place. As with later Senate action, it’s hard to know exactly who is at fault, but Republicans seem to be at least somewhat more aggressive in using Senate norms to prevent or delay the president from nominating anyone in the first place.

It’s also fair to say that Democrats also ratcheted up obstruction when George W. Bush was president (as Republicans did when Bill Clinton was president).

So overall, obstruction during Obama’s presidency is worse. Whether it’s “unprecedented” or “much worse” or whatever is probably a judgement call. That’s different from executive branch nominations, where the change is far more dramatic, and a lot harder to justify.

Another way of putting it? The more obstruction, the closer to the line at which the majority party will find it worth imposing a rules change even though there are many incentives against doing so. Whether we’re at that line or not will depend a lot on whether Republicans really will attempt to kill by filibuster any or all of the three D.C. Circuit Court nominees that Obama recently sent to the Senate. That is, obstruction is dynamic, and we won’t really know how to characterize the current levels until after the fact.

All of which. combined with the importance of the court itself, means that the upcoming showdown on the D.C. Circuit Court nominations is, in fact, a really big deal.

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