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Lift The Blockade On Confirming U.S. Judges

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Lift The Blockade On Confirming U.S. Judges

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By Jonathan Bernstein, Bloomberg News (TNS)

Almost a month into the 114th Senate, the new Republican majority still doesn’t know what to do about filibusters of judicial nominations. The latest? An idea floated recently to eliminate filibusters on Supreme Court nominations (or, technically, to change cloture to a simple majority) seems to be DOA.

The background on this is that when Democrats went “nuclear” in fall 2013, reducing the votes necessary for ending filibusters on judicial and executive-branch nominations from 60 to a simple Senate majority, they omitted Supreme Court confirmations.

Democrats weren’t objecting to ideology-based filibusters against specific nominees, but to the across-the-board blockades preventing the president from filling any judicial vacancy at all. The filibuster that pushed Democrats over the edge was over three seats on the District of Columbia Circuit Appeals Court.

Even if the Republican position was indefensible, it isn’t off base to require some kind of supermajority to approve judicial candidates for the Supreme Court and for other seats on the federal bench.

Federal judges hold lifetime appointments. It’s a little bit weird that Ronald Reagan, George H.W. Bush and Bill Clinton all have considerable influence today because of their choices still serving not only on the Supreme Court, but on the lower courts as well. It’s consistent with the spirit of the Constitution to establish rules that reward mainstream selections. It shouldn’t be easy for a small, temporary majority to set its preferences in stone for a generation.

I’ve been floating a compromise that would prevent blockades of nominations by the minority party, but would also give some check against easy confirmations: requiring a number of Senate votes equal to the number of majority-party senators to block filibusters on judicial nominations. So with 54 Republicans right now, cloture would require 54 votes.

Now, of course, when the government is divided (as it is now, with a Democratic president and a Republican majority in the Senate), the Senate majority party can defeat any nomination without even needing floor votes; it can just kill nominations in committee, or refuse to bring them up for a vote. But in periods of unified government, this compromise would allow the president’s choice to be confirmed only if the president’s party was 100 percent united on the nominee — or, if the majority party wasn’t unified, it would need to find some votes from the other party.

This would still allow a unified party (controlling the presidency and a Senate majority) to confirm anyone it wanted. Presumably, though, anyone supported by the president and the party’s entire Senate caucus, or an equivalent number of votes drawn from both parties, would have to be someone in the mainstream. Otherwise, party moderates (and there are always moderates) might defect, and no crossover votes would make up for it. If support for a prospective nominee is going to be a tough vote for some in the party, that would encourage the president to make a less controversial or factional choice.

This kind of supermajority system — for all federal judges, including Supreme Court justices — gives at least some protection to minority points of view without allowing partisan blockades such as the ones Republicans put up in the last Congress. Senators who are looking for a compromise should consider the idea.

I’d also shift the burden from majority to minority; instead of needing 54 votes to invoke cloture and therefore defeat a filibuster, I’d require 47 votes to sustain a filibuster. Filibusters are justified in part because intense minority opinions are important; therefore, absent senators should count against the minority, not the majority.

Jonathan Bernstein is a Bloomberg View columnist. Readers may send him email at jbernstein62@bloomberg.net.

Photo: U.S. Senate Majority Leader Mitch McConnell, R-Kentucky, waits for the start of the State of The Union address by President Barack Obama on January 20, 2015, in the House Chamber of the U.S. Capitol in Washington, D.C. (Mandel Ngan/AFP/Pool/TNS)

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5 Comments

  1. Crissie Brown January 29, 2015

    A cleaner solution to the filibuster is to require 60 votes to end cloture on the first attempt, but allow repeated attempts at 30-day intervals with 3 fewer votes needed each time: 57 votes after 30 days, 54 votes after 60 days, and 51 votes after 90 days. This would allow a minority to extend debate up to 3 months, but not permanently.

    Reply
    1. Allan Richardson January 31, 2015

      That sounds like a fair compromise, time-limiting the filibuster. Another way to do it would be to require filibustering senators to actually SPEAK to keep the filibuster going, and to impose a CALENDAR LIMIT on the number of days a filibuster can go on.

      Or, alternatively, allow the President to make his second and third choice nominees for each position at the same time as the first choice; if the opposition party confirms ANY ONE of them, fine, but after a time limit, the Senate would have to have an up-or-down vote on the FIRST choice, if that fails, the SECOND, if that fails, the THIRD choice would get the office automatically. If the opposition in the Senate is that opposed to ALL THREE, it means they just want the position to remain vacant, which is not acceptable, because if an office is DEFINED in law, it must be filled by SOMEONE qualified.

  2. itsfun January 30, 2015

    Just yesterday Harry Reid said “The filibuster is an indispensable tool of the minority”

    Reply
    1. johninPCFL January 30, 2015

      Which is why he didn’t eliminate it entirely (but certainly could have) when he was majority leader.

  3. Charley van Rotterdam January 30, 2015

    End lifetime appointments, do as we do here in Oz, retire them at 65 or 70, that way you get a bit of a turnover. Supreme Court judges even after retirement are still called in to conduct Commisions or major investigations or whatever. Their knowledge is still valuable.

    Reply

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