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.