It's All Politics
6:27 am
Fri November 22, 2013

Filibuster Changes Could Be Most Apparent In Federal Courts

Originally published on Thu November 21, 2013 6:57 pm

President Obama and all future presidents have a freer hand today to make both executive and judicial appointments.

The Senate's historic vote on Tuesday eliminates a rule that until modern times had been used infrequently, and not always fairly. That unfairness, said Democrats, increased to an intolerable level during the Obama administration. As Senate Majority Leader Harry Reid, D-Nev., observed, since the Senate created the filibuster rule in 1917, there have been 168 filibusters of executive and judicial nominees — and half of them have taken place during the Obama years.

Getting rid of all but Supreme Court nomination filibusters will immediately benefit President Obama.

The benefits for filling executive positions are obvious. The president will be able to fill the positions needed to run the executive branch as he wants.

A more long-term benefit will come in the federal courts, where Obama has been stymied more than any other modern president.

Neither party has been pure when it comes to filibusters of judicial nominations, with qualified and decent people blocked by both Democrats and Republicans. But everything is a matter of degree.

At the moment, for instance, Obama has 51 judicial nominees pending. In comparison, at this point in the George W. Bush administration, there were 19 pending judicial nominations.

At a similar point in the one term of President George H.W. Bush, there were 26 federal court nominees pending. And in the Reagan administration, 20 pending nominees.

The only modern president who even came close to Obama's numbers was another Democrat, President Clinton. But in short, Obama has between two and three times as many pending judicial nominees right now as the modern Republican presidents.

What's more, the average number of days to win confirmation has also increased exponentially. Uncontroversial federal trial court nominees in the Reagan administration, for example, took an average of 69 days to win confirmation. A similar District Court nominee has taken on average 204 days in the Obama administration. Indeed, even Obama judicial nominees who are eventually confirmed by huge majorities, or even unanimous votes, have consistently faced a slow-walk that can last a year or two.

In the last three weeks alone, Republicans blocked three nominees to the U.S. Court of Appeals for the District of Columbia Circuit. And in no case were there claims that the nominees were unqualified or even too liberal. Instead Republicans claimed that the D.C. Circuit does not have a caseload that justifies filling these slots, a claim that was contradicted by Chief Justice John Roberts, who served on the court, and nonpartisan experts within the federal judiciary who track caseloads and case complexity.

Democrats know they will someday be in the Senate minority, and they will undoubtedly come to rue the day they diminished minority rights. But as one Democrat put it: "The threat we always faced was that Republicans said if we did this, the place would grind to a halt. Well, it's already at a halt. ... This is like threatening to shoot the hostages when they are already dead."

That may be something of an overstatement, but Democrats said they had run out of options.

Privately Republicans acknowledged that with one or two exceptions, Obama's judicial nominations have been centrist liberals — often former prosecutors, lower court judges and corporate lawyers. But they said they feared that without the threat of a filibuster, future nominees will tilt hard left.

As Sen. Lindsey Graham, R-S.C., put it, "The political nature of who you pick changes because you're not going to have to accommodate anybody on the other side. So, I think you'll see over time the flavor of the judiciary change."

Obama aides said they would be surprised to see the tone of the president's picks change. As one put it, "it's not in his nature." Still, just as Republicans face pressure from the right on judicial nominations, Democrats face pressure from the left.

The president will also have more bargaining power now when dealing with Republicans senators. No longer will Republicans in a given state be able to simply block a judicial nomination at will. That means there will be greater opportunities for the president to cut the kind of deals that used to take place: If there are three judicial openings, for instance, Republicans get to pick one, and the president two.

Republicans will not be powerless. There are ways to slow-walk the confirmation process in committee for months at a time. So making deals may serve everyone's purpose. Or not. Much depends on the leadership in both parties.

Republicans almost certainly will try to pick off red state Democrats in some floor votes. And if they fail, they plan to use that against incumbent Democrats seeking re-election in conservative states. Already some conservative groups are airing ads criticizing red state Democrats for having voted in favor of the nominations of Supreme Court Justices Sonia Sotomayor and Elena Kagan.

But the huge upside still is for the president. He now has the ability to fill judicial vacancies when they occur, assuming that he actually makes nominations — something Obama has been slower than most presidents to do.

A final benefit is that he will be able to start filling the judicial pipeline with judges who he might pick if he gets another Supreme Court vacancy. While Republican presidents have been successful at planting their most brilliant judicial seeds on the bench, Obama has been repeatedly blocked. Now he has his chance.

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