Now will we see *actual* filibusters of judges?

November 25th, 2013

Since the nuclear option has been triggered, the minority party can no longer hold up judicial nominees by denying cloture. This is, in essence, a lazy man’s filibuster. Now that this option option is off the table, will we see a real, old honest-to-goodness, Mr. Smith goes to Washington, “Green Eggs and Ham,” filibuster?

A report from Politico leaves that option open:

Senate Democrats will return to a new Washington next month — one in which Republicans can’t rely on the filibuster to block President Barack Obama’s nominations.

But don’t expect Obama’s picks to sail smoothly through the chamber.

Democrats must still find a modicum of compromise with the GOP if they want to swiftly approve Obama’s team. That’s because the filibuster remains in place as a delay tactic, requiring the Senate to burn hours of floor time unless the two parties can agree to speed up procedural votes.

It’s an important calculation for Senate Majority Leader Harry Reid (D-Nev.), who hopes to push through six key Obama nominations in December. Given the time constraints of a December work period, which will last just a few days, he’s going to need help from the GOP to yield time and allow votes to happen more quickly.

A single Republican can easily reject a deal to quickly process nominations. If GOP senators decide to follow that strategy, several of Obama’s nominees could be in limbo until early next year.

And I wonder who that single Republican may be? Sam I am, green eggs and ham.

In a bizarre way, a 20-hour long discussion about the merits of a judge would be much more productive for the debate than a silent-cloture-holding-filibuster. Such a talk could give attention to specific candidates that may have some negative attributes. This is not to say that such a filibuster will stop the confirmation of the judge. But, I can see circumstances where certain moderate Senators on the fence may change their minds. And this could be enough to temper a President’s decision to appoint more controversial nominees. In other words, the lack of a filibuster will not turn into a rubber stamp.

It has happened before. Ed Whelan comments on a case from the 1990s where public opposition to two judges actually changed votes in the Senate:

Senator Hatch and other Republicans had especially strong objections to two of President Clinton’s federal appellate nominees during those years, Rosemary Barkett and Lee Sarokin. Yet we never gave a thought to resorting to the filibuster. Instead, we made exhaustive cases against both nominees (see here and here for samples) in order to inflict political costs on Clinton for nominating them and for Senate Democrats who would support them.

Barkett (who had the misguided support of her home-state senator Connie Mack) was confirmed by a 61-37 vote, but the fact that senior Democrat (and former majority leader) Robert Byrd voted no is a sign of the traction that we obtained. Sarokin also was confirmed, 63-35, but six Democrats voted against him, including Democratic whip Wendell Ford and Harry Reid. Indeed, Ford and two other Democrats were so eager to be on record as ardently opposed to Sarokin that they, to our surprise, arranged for a cloture vote so that they could say that they even voted against cloture on him. (Republican leadership supported the cloture motion, which received 85 yea votes.)

In the Senate elections in 1994, Republicans in several key races made Clinton’s judicial nominations part of their campaign. I won’t claim that judicial nominations were a leading factor in the Republican takeover of the Senate in that election, but, from what I recall from the judgment of contemporaneous commentators, they certainly appear to have helped. Indeed, poor Judge Sarokin, in resigning from the bench in mid-1996, expressed his concern that his judicial record would be used against Clinton’s re-election effort.

My point here is that up-or-down votes on a Democratic president’s objectionable judicial nominees can and should be political winners for Republicans. It’s useful to force Democratic senators, especially in red states, to the difficult choice between supporting the nominees (at the risk of alienating many of their constituents) and opposing the nominees (at the cost of alienating their colleagues and the president). By contrast, filibusters protect Democratic senators from ever having to make that choice. (It’s much easier to explain away a vote against a filibuster.)

One of the silver linings of this entire process is that the Senate will now be forced to focus on the merits and demerits of a candidate through their advice-and-consent process, rather than simply stalling to no end, and them confirming the nominee because some expedient political deal was reached.