Democrats changed the Senate rules to make it harder for Republicans to block President Obama’s nominees with a filibuster, but don’t cry for the minority. The GOP has a variety of other tactics it can use—and has been using—to deny confirmation of judges that Obama nominated in most cases many months ago. None are as obvious as the filibuster that Republicans routinely used to delay or derail nominees, but the Democrats’ decision to pull the trigger on the so-called nuclear option and allow a majority vote of 51 to end a filibuster, rather than the often insurmountable 60 votes, does not end Obama’s woes. Republicans can still filibuster, and there are a host of other time-honored traditions that can soak up the Senate’s time and prevent Obama from getting his nominees placed on the federal bench.
Nan Aron, president and founder of the progressive Alliance for Justice, says the rule change means that 17 of Obama’s nominees, including three circuit court judges blocked by the GOP, would get a vote on the Senate floor and win confirmation. “That’s worth celebrating,” she says. “It was a welcome victory, but none of us should think it ended anything.”
The number of federal judges appointed by Republicans and by Democrats is at parity with 390 each—and 93 vacancies. Obama has only put nominees forward for 51 of those vacancies, a figure Republicans like to cite as evidence the president must not feel a sense of urgency, so why should they? Dig a little deeper and it’s not surprising that Obama has fallen behind. The nominees he has proposed often end up in legislative limbo thanks to the tradition of blue slips. When a president nominates a judge, the senators from the nominee’s home state are notified via a letter written on blue paper, which asks the senator to approve or disapprove of the nomination. If a senator doesn’t return a blue slip, as Republican senators have been wont to do, it sounds like a minor lapse, like returning a library book late. But in the Senate, this quaint tradition is enough to kill a judicial nomination.
Ten currently pending judicial nominees could have had a hearing by now if their home-state senators had returned their blue slips. Intended as a courtesy, it is now the equivalent of a veto. Senators don’t even have to voice a complaint; they can just fail to turn in those blue slips. Several district court nominees from Texas are being blocked by the inaction of Sens. John Cornyn and Ted Cruz. Fve pending nominees call Arizona home, all of whom were designated “judicial emergencies” to serve on understaffed courts. They could have had an immediate hearing, but Sens. John McCain and Jeff Flake as of last Monday had not returned their blue slips for whatever reason—even though the nominees were recommended by McCain. A call to McCain’s office Tuesday got an email response that the senator returned his blue slips that day. Flake’s press secretary emailed that the senator has not returned his blue slips. No reason was given.
Of the 42 vacancies without nominees, 37 are in states represented by one or two Republican senators, so the quiet sabotaging of Obama’s nominees is likely to continue to be an issue even if the president ups his game and advances more candidates. For now, Obama is expected to get his three nominees confirmed for the D.C. District Court after the Senate returns from its two-week Thanksgiving break. It’s a significant breakthrough for the court that will rule on future challenges to Obamacare and the administration’s regulatory agenda. It alone makes the Democrats’ rule change a victory for Obama.
But in a Senate that still relies on “unanimous consent” to move noncontroversial nominations as a group, the Republicans can force each nomination to be considered one by one. On Nov. 21, after Senate Majority Leader Harry Reid announced the filibuster rule change, Republicans refused to wave through a number of lesser nominations the way they normally do before taking an extended break. If they really want to tie things up, they can demand the full 30 hours of debate for Cabinet-level nominations; eight hours for lesser posts. They easily can consume the Senate for a full day on a single nomination. They also can slow down the committee process, erecting obstacles to scheduling hearings. Or, as they did in November, Republicans can fail to show up in sufficient numbers for a Judiciary Committee meeting to prevent a quorum.
Judiciary Chairman Patrick Leahy has held firm with the blue-slip rule, and if either home senator doesn’t return it, the nominee doesn’t get a hearing. Russell Wheeler, an expert on the judiciary at the Brookings Institution, assumes Leahy’s fealty to the tradition stems from the assumption that “when the inevitable comes, a Republican chairman would be just as charitable. I’m not so sure.” Wheeler continues, “It’s safe to say it’s as bad as it’s ever been in the modern era. There’s not any singular event that caused this, it’s the increase in partisanship. The judiciary is just an innocent bystander in these partisan fights.”
Republicans lambasted Democrats for their “power grab,” but the nuclear option could have been avoided if Republicans had yielded on two of the three district court judges and confirmed Rep. Mel Watt to head the Federal Housing Finance Agency. Watt was the first sitting member of Congress to be filibustered since before the Civil War. “They overplayed their hand; Democrats needed to act,” says Aron of the Alliance for Justice. “I think it was an astonishing, historical moment and a big boost for democratic values. Having said that, we are in uncharted waters here.”
When the Republicans controlled the Senate in 2005, they flirted with the nuclear option but backed away when a Gang of 14 (seven Republicans and seven Democrats) agreed that judicial nominations would be filibustered only under “extraordinary circumstances,” generally meaning moral turpitude, lack of credentials, or beyond-the-pale extremism. The deal held through the remainder of President Bush’s term. Unlike former Senate majority leader Bill Frist, who sought a deal to avoid detonating the nuclear option, Senate Minority Leader Mitch McConnell “was happy to have it happen,” says Norm Ornstein of the American Enterprise Institute, a conservative think tank. “He had every intention of blowing up the Senate. If and when they get the majority, this way he can blame the Democrats. He did his cost-benefit analysis.”
With Republicans seeing an opportunity to gain control of the Senate next year, Democrats calculated that the partisanship would only grow more intense and that if they didn’t act on the rule change now, they would forfeit the last three years of Obama’s presidency. The Democrats made a preemptive strike, and now the Republicans will exact their revenge.