Obama is having a spot of trouble getting judges through the nomination process. So did Bush. And Clinton. And Bush . . .
Naturally, when it's happening to them, each side screams that this is an unprecedented abuse of minority (or for that matter, majority) power. Of course, when it's your side doing it, well, elections have consequences, know what I mean?
Jonathan Adler traces the whole history of this fight, which was started by the Democrats under Reagan. Since then, we've been locked in an escalating tit for tat war in which the loser is our increasingly empty federal court system.
Senate Democrats were not particularly happy with Republican treatment of Clinton’s nominees, particularly those that were held for extended periods, so they returned the favor as soon as they had the opportunity. President Bush offered an olive branch in May 2001 when he re-nominated Roger Gregory to the U.S. Court of Appeals for the Fourth Circuit to fill a seat that had been open when Clinton took office, and remained vacant until Clinton recess appointed Gregory at the end of his second term. Bush also nominated a prominent Clinton district court nominee, Barrington Parker, to the U.S. Court of Appeals for the Second Circuit. These gestures did not earn much goodwill, and Senate Democrats resolved to obstruct the confirmation of appellate nominees particularly those, like Miguel Estrada, who were likely Supreme Court picks. They slowed the process down — much as Republicans had done to Clinton — while they had the majority. Once they lost control of the Senate, however, they tried something new: filibustering appellate nominees. In all ten appellate nominees were successfully filibustered. Five of these were later confirmed after the Gang of 14 deal, whereas the other five were never confirmed. Of note, while the Gang of 14 deal led to the confirmation of some filibustered nominees, many Senate Democrats (including a Senator from Illinois who now sees things from the other side) continued to vote against cloture on high-profile appellate nominees.
In the end, President George W. Bush saw only 67 percent of his appellate nominees confirmed — a lower percentage than any of his predecessors. This was despite efforts to make up for past GOP obstruction at the start of his term and a later deal in which Bush re-nominated another stalled Clinton nominee in exchange for confirmation of one of his own. On district courts, however, Bush’s nominees fared better. 95 percent of his district court nominees, which is in line with the pre-Clinton norm.
Nothing motivates a Senator like a need for payback, so Senate Republicans targeted President Obama’s judicial nominees from the get-go. Their task was made easier by the Obama Administration’s tardiness in making judicial nominations. Like Clinton, President Obama made nominations for fewer than 20 percent of the judicial seats vacant at the end of his first year in office. What nominations were made, were made at a slow rate, making it easy to target individual nominees.
Beginning in 2009, Senate Republicans also embraced a tactic they once scorned: the filibuster of judicial nominees. As Senator Jeff Sessions explained in a 2009 op-ed, for Republicans to ignore the fact that “the rules had changed” would constitute “unilateral disarmament.” Thus until an agreement is reached to eliminate the filibuster of judicial nominees of either party, the tactic would be on the table. And so, the filibusters eventually began.
Partisans on either side who are whining that the other guys are just so surprisingly horrible, how could they be so mean, should cut it out. But so should the Senate. It's one thing to use the filibuster as an extraordinary check on extraordinarily bad nominees. But the Hobbesian war of all against all has to stop.
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