Ruth Marcus
Columnist November 21, 2013

Senate Democrats made an understandable mistake in dramatically curtailing the use of the filibuster .

It’s understandable for the obvious reason: Republicans all but forced the Democrats’ hand with unprecedented obstruction of nominees.

Ruth Marcus is a columnist and editorial writer for The Post, specializing in American politics and domestic policy. View Archive

The straw that broke the Senate’s back was Republican refusal to allow President Obama to fill any of three vacant seats on the federal Court of Appeals for the D.C. Circuit — not on the grounds that any of the nominees was unqualified but simply because conservatives would be better off with the current balance on this important and closely divided court.

This was not the sort of “extraordinary circumstance” that both sides had agreed would justify a filibuster. If this obstruction-as-usual finally eroded the patience of frustrated Senate Democrats, it’s hard to blame them.

And the argument that deploying the “nuclear option” to change the rules by majority vote will “break” the Senate has long lost its persuasive force. The Senate is broken. It can’t get much worse.

Still, the Democrats’ move is a mistake.

Not when it comes to executive-branch nominees — eliminating the filibuster in such cases makes complete sense. A president, Republican or Democrat, deserves deference in deciding how to staff the government. If a president picks the wrong person, that’s his or her problem. The harm won’t last long.

Meanwhile, the damage inflicted by the long list of executive-branch vacancies is enormous. At the Department of Homeland Security, for instance, it’s home alone. Not only is there no secretary but 40 percent of the senior leadership positions are empty. There is no confirmed deputy secretary. According to the department’s Web site, three of four undersecretary positions are filled by a person who has not been confirmed; the fourth is vacant. There is no confirmed immigration-enforcement director or customs commissioner.

Similarly, the difficulty of confirming new Cabinet nominees results in effective job lock — once you get confirmed, there’s no leaving. If the president were considering replacing Health and Human Services Secretary Kathleen Sebelius, for instance, how could he ever hope to get a successor past a Republican filibuster?

Judges are different, and this is where the Democrats erred. Their move — unlike previous proposals — eliminated the filibuster except for Supreme Court nominees. The simple reason for subjecting judicial nominees to a higher hurdle for approval: lifetime tenure.

This is not to argue that filibusters should be routine or that Republicans were justified in the frequent deployment of a tactic they once denounced. But there are circumstances, even outside the context of the Supreme Court, in which a judicial nominee might be so outside the mainstream or otherwise unqualified that filibustering would be justified.

The historical amnesia suffered by both sides would be funny if the stakes were lower. It wasn’t so long ago that Republicans clamoring for an up-or-down vote for judicial nominees and assailing Democrats as schoolyard bullies engaged in unprecedented obstructionism. Democrats, meanwhile, were touting the ability to filibuster judges as an essential bulwark of democracy. They were over the top in their rhetoric and wrong in some of their targets but correct in their fundamental point.

Unlike the logical line between filibustering judicial nominees and those for executive-branch positions, the distinction between filibustering lower-court nominees and those for the Supreme Court is one of convenience. There is no reason to think the line would survive a future test. Why wouldn’t a Republican-controlled Senate, faced with a Democratic filibuster of a Republican president’s choice for the high court, simply use its majority muscle to further erode the rule?

Even assuming that line holds, eliminating the possibility of filibustering lower-court nominees will fundamentally change the calculus of judicial appointments. Presidents will understand that in picking judges they have to count only to 50, which will embolden them to press the envelope, ideologically and otherwise.

Republicans will be empowered to pick more conservative judges, Democrats more liberal ones. Perhaps this will make for a more vibrant judiciary. I fear it will create one that is more polarized and possibly less well-qualified.

The rules change also marks a fundamental and unappreciated shift of power from the Senate to the executive branch. Would the Senate now be weighing the nomination of Larry Summersfor Federal Reserve chairman if the new rules had been in place? Have senators fully thought this through?

The filibuster should be a break-in-case-of-emergency tool for judicial nominees. Democrats liked having it on tap when George W. Bush was president. They may well miss it down the road.

Read more from Ruth Marcus’s archive, follow her on Twitter or subscribe to her updates on Facebook.