The Washington PostDemocracy Dies in Darkness

Will Senate Democrats go nuclear?

Justice is blind (though her scales are partisan. Credit: Tim Evanson via Creative Commons.)

Senators are at war over confirming the president’s nominees for the federal bench, sparked by Republicans’ near-blanket filibuster of four of Obama’s five appointees to the D.C. Circuit of the U.S. Court of Appeals. Three of the five nominees remain in limbo in the Senate, after one nominee (Sri Srinivasan) was confirmed this past May and one (Caitlin Halligan) asked to have her nomination withdrawn in March after multiple filibusters.  Senate Republicans argue that the circuit’s caseload is too low to merit filling authorized judgeships and that the partisan split of the bench (balanced evenly between judges appointed by Republican and Democratic presidents) precludes confirming any more Obama nominees. (In fact, with numerous GOP-appointed, quasi-retired judges still serving, the circuit tilts conservative.)

Arguing that the GOP blockade of the most important circuit court is unprecedented, Senate Democrats are poised to “go nuclear,” possibly as early as Thursday.   If successful, the move would ban filibusters of executive and judicial branch nominees (save for the Supreme Court) by using a simple majority vote either to create a new precedent or to end debate on a new rule that would bar such filibusters.  On the heels of their credible threat to go nuclear this past summer and with mounting Democratic frustration with GOP behavior, prospects loom for another nuclear standoff in the Senate.

Coverage of the Senate impasse has been ample and excellent, but there’s more to be said about the Senate’s parliamentary predicament.

First, most observers note that the GOP’s judicial blockade is unprecedented.  I’m not so sure.  Jonathan Chait observed in New York magazine on Wednesday that the Republican filibusters represent a “difference of degree that amounts to a difference of kind: They [the GOP] have declared their intent to impose permanent vacancies in Obama’s administration and in three swing seats in the crucial D.C. Circuit Court.”  Others are bolder: Brian Beutler argues in Salon that the GOP’s “nullification strategy is radical, and entirely new.”  The GOP’s rationales for blocking Obama’s D.C. Circuit appointees are certainly brash (and arguments about the circuit’s caseload have been effectively challenged).  But along one dimension at least, GOP targeting of the D.C. Circuit reflects a more enduring partisan tactic in the wars over bench: Both parties for years have aggressively opposed nominees slated for appellate courts that are “balanced” between the two parties’ appointees.

Since 1981, 70 percent of nominees for circuits bending in favor of either Democratic or Republican appointees have been confirmed; over the same period, only 58 percent of nominees to evenly or near-evenly split courts have made it to the bench.  Even if we control for the other forces that tend to depress the chances of confirmation (such as divided party government or the run up to a presidential election), nominations to split circuits are still less likely to be confirmed.  Republicans, for example, blocked Clinton’s appointees to the D.C. Circuit after 1997 when the circuit approached partisan parity, and both parties opposed the other parties’ nominees to the evenly balanced Sixth Circuit over the course of the Clinton and Bush administrations — leaving at times a quarter of the bench’s seat vacant.  To be sure, senators in the past rarely owned up to their partisan strategy, preferring to pin their opposition on nominees’ qualifications or legal views. Past practices neither excuse nor justify the current GOP blockade of Obama’s nominees.  But putting today’s obstruction into perspective is important.

Second, I have deep reservations about the emerging argument in the Senate that some filibusters of judicial nominees are “acceptable” while others are not.  Democrats seem to be arguing that “norm-conforming” filibusters (say, on the grounds that a nominee is out of the ideological mainstream or is unqualified professionally) are kosher, but “norm-busting” filibusters (on the basis of the overall ideologically makeup of the circuit) are not.  Senate rules of course can’t distinguish between the two types of filibusters, and each party disagrees about whether the other party has crossed the line.  Thus, when Jonathan Chait notes that “Ideally, the Senate would find some mechanism that would be strong enough to allow the minority to block unusually extreme judges from the bench, but weak enough to prevent the minority from issuing a total blockade on even qualified judges,” it is hard to imagine what such a mechanism would be.  Efforts to stem filibustering in the past have tended to be informal handshakes that last no longer than the political will that first forged them.

As Democrats have learned, relying on GOP’s notions of parliamentary restraint is futile. That’s why Democrats believe that they have no alternative but to threaten to go nuclear — presumably in hopes that senators’ ever-present political instincts to preserve the filibuster will lead to a negotiated settlement. Democrats have not been very happy with these settlements because they typically can’t be enforced under Senate rules.  But so long as senators believe that some types of filibusters are norm-busting while others are acceptable, Senate majorities will always find themselves in a bind when supermajorities for their policy goals are out of reach.  That predicament is hardly a new one for the Senate. There just isn’t any halfway point short of changing Senate rules (either formally or through the nuclear option) that effectively empowers a Senate majority — unless those same senators are willing to give up their own right to filibuster.  We’ll learn soon enough if Democrats have the guts to go there and, if so, whether that compels any Republicans to stand down.