Sunday, July 15, 2018

The Loss of the Filibuster and Judicial Confirmation Reform

David Super

     Several commentators are chiding Senate Democrats for procedural missteps that allegedly destroyed their leverage in the confirmation process for Justice Kennedy’s replacement before it even began.  Some criticize Senator Reid for having abolished the filibuster for lower-court nominees, establishing a precedent Senator McConnell invoked when he eliminated the filibuster at the Supreme Court level.  Others criticize Democrats for attempting to filibuster Justice Gorsuch’s nomination, prompting Senator McConnell to act so that the filibuster is not available now.  Neither of these complaints stands up to serious scrutiny.  On the other hand, Democrats’ lack of imagination in 2014 may have cost them an opportunity at least to put Senator McConnell in an awkward position and possibly to garner a more moderate conservative nominee.

     Democrats effectively lost most of the benefit of the filibuster against judicial nominees well before Senator Reid invoked the “nuclear option.”  During President George W. Bush’s administration, Senate Republicans repeatedly threatened to use the “nuclear option” to end the filibuster for judicial nominations in order to force Democrats to accept confirmation of numerous judicial nominees.  Initially Democrats tried being highly selective with their use of the filibuster, allowing through a number of nominees with extreme and troubling records.  When even that was insufficient to placate Republicans, Democrats reached an agreement with Republican senators to allow confirmation of some judges whom had raised serious red flags in exchange for Republicans not employing the “nuclear option.”

     Once Senate Republicans made clear that the filibuster would last only so long as it did not significantly get in their way, it had become effectively useless to Democrats.  At most, it could provide a convenient way of disposing of nominees who had sufficiently embarrassed themselves that Republicans would not want to have them be the public face of the change in Senate procedures.

     Once the filibuster ceased to be useful to Senate Democrats, Senator Reid acted sensibly in denying it to both parties alike.  Senate Republicans gave him little choice, all but shutting down the confirmation process (at least for circuit court nominees) even when nominees raised no particular red flags.  Senate Republicans, astutely, declined to make the kind of deal that Democrats had under President Bush:  to keep the appearance of a filibuster in exchange for a promise not to use it.  Indeed, Senator Reid’s approach was considerably more moderate, and hence less effective, than it could have been:  his rule allowed the minority party to burn off considerable chunks of precious Senate floor time in opposing nominees.  By making the majority party pay a high price for each nominee, this restored confirmation pipeline became a relatively narrow one.  This concession contributed to the number of judgeships remaining unfilled when Republicans won the Senate in 2014 and began blocking nominees wholesale. 

     The same principle applies to the attempt to filibuster Justice Gorsuch’s nomination.  A filibuster that can continue only so long as Democrats never invoke it serves no useful purpose for them.  Indeed, with Senator McConnell and others hinting that they might continue to block Supreme Court nominees for the next four years should Hillary Clinton have won the 2016 election, the situation was entirely parallel to that which led to the elimination of the filibuster for lower-court nominees.  Had Senate Democrats not forced Senator McConnell to choose between the filibuster and Justice Gorsuch’s nomination, Senate Republicans would have happily collected their confirmations and then turned around and filibustered the next Democratic president’s nominees. 

     Indeed, Democrats made the sensible choice in forcing Republicans to eliminate the filibuster over Justice Gorsuch’s nomination – which was tainted procedurally by Republicans’ refusal to consider Judge Garland’s nomination – than waiting for a nomination for a vacancy naturally occurring during President Trump’s term in office.  To be sure, the defeat of Roy Moore and the illness of John McCain have unexpectedly narrowed Republican control of the Senate.  The choice to press the issue against Justice Gorsuch, however, would only prove mistaken if some Senate Republican would vote to confirm Judge Kavanaugh but would not vote to support the elimination of the filibuster when asserted against him.  That such a senator might exist is not inconceivable, but it seems most unlikely with a high-profile nomination like this one:  the pressure to fall into line to ensure Judge Kavanaugh’s confirmation would be ferocious either way.  Going through the “nuclear option” process now might have taken a bit more time, but at this point Senator McConnell is delighted to keep the Senate in session so that vulnerable red-state Democrats cannot go home to campaign.

     That being said, Senator Reid did miss an opportunity to transform the judicial confirmation process in a way that could have been quite embarrassing for Senator McConnell to undo.  He could have considered alternatives beyond blocking most significant nominees (i.e., always allowing the filibuster) and allowing all but the most embarrassing nominees through (i.e., fully extinguishing the filibuster).  A middle ground might be to give the President the option to avoid the filibuster in exchange for accepting some constraints on who is nominated in a way that would moderate the harm to the minority party. 

     In other settings where the filibuster is disallowed, Senate procedures seek to limit the scope of actions that a bare majority may take.  This, when an expert, non-political commission recommends closing military bases, legislation to implement those recommendations has enjoyed substantial procedural protection not available to routine legislation on the subject.  When the Senate invokes cloture on legislation, further amendments must meet strict germaneness rules designed to keep unpleasant surprises from being smuggled in after senators have surrendered their most important defensive weapon.  Legislation to rescind appropriations is immune from filibuster but only if it meets the terms of the Impoundment Control Act.  The content of budget reconciliation legislation similarly is immune from filibuster but constrained by the Byrd Rule.  These limits matter:  the Affordable Care Act might well have died last year had not the Byrd Rule constrained the sweeteners the Republican leadership could offer its wayward senators, and a few sweeteners might have gotten President Trump’s rescission package through the Senate this summer. 

     I have written elsewhere about a process analogous to the one New York relies upon to select its high court judges.  The Senate majority and minority leader would each appoint members of a commission that would develop lists of candidates for various courts.  The Senate could provide by its rule-making power that any presidential nominee on the commission’s list would be assured of an up-or-down vote, immune from filibuster (and entitled to automatic discharge from the Judiciary Committee after a certain number of days and a privileged motion to bring the nomination to the Senate floor for a vote).  The President would remain free to nominate whomever the President pleases, but then the usual Senate procedures (including the filibuster and the majority leader’s prerogative to decline to bring up the nominee for a vote) would apply to nominees lacking the commission’s blessing. 

     One can imagine that the current majority and minority leaders would appoint fierce partisans to such a committee, and perhaps initially it would deadlock.  People of the gravity to be appointed to such a commission, however, tend not to like to waste their time, and unlike senators they do not risk primary challenges if they acknowledge merit in some members of the other party.  Eventually a system of trades would arise, with the opposition party agreeing to some relatively moderate candidates whom the President might like in exchange for adding to the roster some candidates a future president of their party might choose.  Republican Presidents would still appoint conservatives and Democratic Presidents would still appoint liberals, but the need to garner some acquiescence from the opposing party – either senators willing to end a filibuster or commission members willing to sign off on a potential nominee – would tend to moderate the selections. 

     This would, of course, preclude any dramatic Democratic conquest of the judiciary whenever the party retakes the White House, but the odds of that happening are remote in any event.  This also would end the bizarre phenomenon of judges disqualifying themselves for elevation by showing wisdom, moderation, and independence.  And it would largely end the practice of running on a list of prospective judicial nominees, which tends to empower extremists.

     Had Senator Reid instituted such a system when he first acted against the filibuster, Senator McConnell might have had some difficulty explaining why he was undoing it.  And if Democrats endorsed something along these lines now, that might move some Republican senators with qualms about any of President Trump’s appointees who nonetheless do not want to leave open a seat to be filled eventually with a left-wing Democrat.  

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