Judicial Filibusters: What Now?

Senate Republicans have filibustered Goodwin Liu’s nomination, and it’s silly to think that this won’t happen with virtually every Obama nominee, especially with a McConnell-led caucus.  For example, Caitlin Halligan, Obama’s first nominee to the DC Circuit, was opposed by every single Republican on the Senate Judiciary Committee, and if you think that doesn’t mean that they will filibuster her, I’ve got a bridge in Brooklyn to sell to you.  Once the Democrats are in the same position, they will do the same, as they did during George W. Bush’s presidency.  The “deal” arranged by the Gang of 14, which militated strongly toward the Republicans, said that a nominee would be filibustered only under “extraordinary circumstances,” which in GOP-ese, means “when there is someone we don’t like.”  (Previous Democratic filibusters were not undertaken under the Gang of 14 deal, but I hardly expect Democratic behavior to be different).

So what do we do now?  It’s getting to the point where there is a real crisis in terms of filling positions.  Here’s a modest proposal, which might actually have some support on both sides of the aisle.  The trick is finding language for a deal sufficiently hard-edged that it can be written into the Senate rules, sufficiently non-partisan to attract support from Democrats and Republicans, and sufficiently protective of individual Senators’ power that the members of the World’s Most Dysfunctional Deliberative Body can agree to it.

Here goes:

In the federal appellate courts, judges within a circuit are generally assigned by state.  In the Second Circuit, New York gets some, Connecticut gets some, Vermont gets some, although of course New York gets more because of population.  My proposal for a rules amendment would be:

Cloture for judicial nominees will require a simple majority of all Senators in the chamber if the nominee is approved by both Senators from the nominee’s state of service.

If a nominee for the 9th Circuit will sit in California, and both California Senators approve, no filibuster is in order.  If a nominee for the 5th Circuit will sit in Mississippi and both Mississippi Senators approve, no filibuster is in order.  Yes, under this scenario, Liu would have been confirmed, but Haley Barbour’s dog would have been confirmed for Mississippi.

This framework would have the benefit of moving at least some judges through the pipeline, and alleviating the vacancy crisis.  It would be attractive to Senators; maybe it would even enhance their power in some circumstances.  As things stand now, things are just going to spiral upwards, and the federal judiciary will essentially turn into an Article I body, with recess-appointed judges doing temporary work.


1.  Small one: no solution for the DC and Federal Circuits.  True, but it’s something.

2.  Would the inability to filibuster under some circumstances promote more filibustering under others?  Perhaps, but with this Senate Republican Caucus, it’s hard to see it increasing that much more.

3.  Sharply divergent courts depending upon the region.  I don’t want to think about what the 5th and 11th Circuits would look like by the time this took effect.  On the other hand, they are pretty awful already.  And so are regional disparities.

I’m not fully convinced of it; I offer it for discussion purposes.  Two more things to keep in mind:

First, Obama has been just unconscionably derelict in nominating people.  I don’t expect that the Republicans would have let any more nominees through, and that may be why no one in the administration is doing it.  The Republicans are busily filibustering FTC Commissioners, and Deputy Assistant Secretaries of things.  But at the end of the day, you’ve got to make the nominations. 

Second, maybe it’s all moot because as soon as the Republicans have the Presidency and the Senate, they will just go nuclear and have done with it.  Perhaps.  But they didn’t do it the last time, probably because they couldn’t have gotten the votes.  The next Senate Republican majority will be the most conservative since the Gilded Age, but it’s still hard to convince a Senator to give up his power.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

24 thoughts on “Judicial Filibusters: What Now?”

  1. Won’t work. That used to be the rule for district court judges during the Clinton administration, as long as the nominee was plausible. The Republicans didn’t obstruct them, because they only decide cases, not make policy, so only competence was important. Their conduct seems to have changed. The Rs will oppose even a district court judge who fails their litmus tests.

    And its only hard to persuade a Democratic senator to give up his/her power. All you need to do with a Republican senator is a discreet whisper about the primary election process.

  2. What counts as the state of service for appellate courts? (The 1st Circuit has traditional Rhode Island and Maine seats, for example, but those are merely traditional.)

  3. I think you are proposing a return to the 20th century practice. Judicial nominations were not filibustered, but they were also not reported out of committee unless the affected senators returned their blue slips. This changed only because Orrin Hatch decided to ignore the tradition. The nominations filibustered by Democrats would never have reached the floor under 20th century norms and traditions. I don’t blame Hatch. I think the practice was the President negotiated with the relevant senators before nominating *and* that, in the cases of mix ups, withdrew nominations if the blue slips didn’t return.

    I am ignorant (but many people aren’t). This is of some relevance, because the current difference between the 5th vs the 11th circuits is the result of this old norm. I don’t see how your proposal differs (I am ignorant) but I suspect that it would make the differences between the circuits stay about as they are and not get more extreme. Clearly the current differences are not just due to chance and not just due to traditions of appointing judges from the area where they will have jurisdiction. I’m sure they are largely due to the old blue slip tradition which, as far as I can tell (and that is not at all far) you propose reintroducing as a formal rule of the Senate.

  4. @Robert Waldmann — We’re all working under ignorance here, because so much of Senate practice was and is sub rosa. Essentially, what happened in the 90’s was that Hatch and the Republicans shut down the entire judicial confirmation process, approving fewer of Clinton’s nominees than Democrats did under Reagan and Papa Bush during the same time period. Hatch basically refused to have hearings, and allowed one non-returned blue slip to kill the process. But I know of no convention at the time saying that one didn’t filibuster judicial nominations. Southerners filibustered Thurgood Marshall when Kennedy nominated him for the Second Circuit, even though Javits and Keating strongly supported Marshall; ditto Fortas and the Chief Justiceship in 1968. The difference in what I am proposing is that whereas a non-returned blue slip could KILL the process in the 90’s, in my scenario two returned blue slips would move the process forward.

  5. It might also be worth looking at other countries for ideas. A number of countries have more formal–whether statutory or constitutional–supermajoritarian appointment procedures than we do, but few seem to have the gridlock we’ve gotten, where the opposition believes it’s better to have a vacant seat than one in the hands of the enemy. Germany (partially) delegates the appointment work to a PR-constituted committee whose deliberations are kept secret and whose decisions require a 8/12 majority. If a vacancy goes on too long, the current judges get to propose candidates. Similarly, some (like South Africa) place a great deal of power in a commission that may have more input from the legal profession & the judiciary.

    Unfortunately I suspect that any attempt to go beyond informal understandings and institutionalize a real change in procedure would require an amendment.

  6. JZ: “Once the Democrats are in the same position, they will do the same, . . .” No they won’t. You are not going to solve the problem of escalating Republican radicalism, by diagnosing it, counterfactually, as some highly unlikely future Democratic radicalism.

    At any given point in time, the Democrats are always much wimpier and much less disciplined as a partisan body than their Republican counterparts. And, besides that, the Democratic agenda — even the largely ignored agenda of the Democratic Left, not to mention the compulsively compromised agenda of the Obama Administration — isn’t radical. Mostly, the Democratic agenda is moderate or conservative in the non-ideological sense of conserving economic interests and practices, and when it isn’t objectively conservative, it is overwhelmingly popular (e.g. gay marriage). Where the Democratic agenda is most unpopular (and corruptly centrist, as in banking reform), it coincides closely with the Republican agenda, of promoting business interests. That asymmetry, which you wrongly deny, is an essential part of the dynamic that produces an escalation of Republican radicalism.

    You acknowledge the fact of partisan asymmetry, when you recognize that the Gang of 14 deal was a cave-in to the Republicans, just as you do, when you note Obama’s laggardness in making appointments or fighting effectively for the appointments he does make.

    Republican radicalism is working very well for the constituencies of the Republican Party. The only vulnerability the Republicans face is that their coalition does not come close to a majority in the country. The Democrats, however, let them win elections, by demoralizing their own base, and delivering substantive policy only a corrupt centrist or a Republican could like. The Federal judiciary is already so radically conservative that it might as well be the judiciary of a fascist state; given the demographics — the last reliable “liberals” were appointed by the Ford! Administration — the Republicans have already won, for at least a generation, probably two.

    Republican radicalism is not simply a matter of political tactics or parliamentary procedure. It reflects, and implements, the plutocratic takeover of the country’s politics, a fundamental and politically substantive problem. The Democratic Party is, at present, too corrupt and too undisciplined to oppose the Republicans effectively. The problem is not the Democrats will imitate the Republicans in a partisan arms race; the problem is that the Democrats cannot and will not do so, and the Republicans, therefore, have no reason to fear payback. Payback is a b*tch, because it costs, and Democratic politicians are not willing, or able (for a combination of organizational and ideological reasons), to pay the cost. The Republican agenda could never command majority support in the country, given that its economics of one of pillage, but it doesn’t have to, because the Democratic Party is organized around political strategies that deliberately obscure the differences in policy agenda between the Parties, and either depress turnout by demoralizing Democrats or permit Republicans to depress turnout by legal and not-so-legal means.

    Republicans will change tactics, when they lose. Make them lose. Any silly scheme for tying the hands of Democrats, or legitimating super-majority rules, can only help the Republicans.

  7. Sounds like a good idea to me. If approved now but made effective starting Jan 2013, then no one knows who’s President or who many of the Senators are. Veil of ignorance and all that.

  8. Maybe I’m just in a feisty mood, but it seems like there’s an eminently viable and politically plausible option here that I’ve never heard anybody mention: an across-the-board, no-exceptions, nuclear recess appointment of all pending nominees. Everyone from federal judges on down to the federal equivalent of dogcatcher. Obama did a little mini-flurry of recess appointments at least once before the midterms, but that was just a brushback pitch. As I recall, they were mostly uncontroversial nominees for nonjudicial positions who’d been waiting since Day 1 of his term–the whole point was to call attention to the fact that his nominees were being stalled for no reason. Well, here we are in 2011.

    Now, obviously under normal circumstances, or even the normal-abnormal ones that Congress has operated under for over two hundred years, this would be a massive abuse of his Constitutional privilege. But not only is the GOP being intransigent to the point of dereliction under this particular president, you could make a case that Congress itself needs a spanking from the executive branch (on behalf of the judicial). Control of both houses will change several times in the careers of the younger Members; they might as well get a good look at what perennial foot-dragging and obstructionism gets them.

    Maybe more importantly, it’s a clean hit. Republicans (and anyone else who minds) will have a good long time to make the case that Obama and/or Democrats should pay a political price, and if voters agree, so be it. Obama can frame it that way from the start: I didn’t do this lightly, and if I haven’t chosen these appointees wisely, I’m prepared to accept the consequences. No matter who is elected in 2012, the appointments will expire with the end of the term, so it’s not like the nation will be permanently cursed with a fully staffed judiciary or bureaucracy. And as a show of good faith, Obama could offer to fire any of the executive branch appointments who fail an after-the-fact, up-or-down “confirmation” vote.

    Any thoughts?

  9. Any scheme that legitimates super-majorities will always tend to favor the plutocrats and reactionary rentier interests. Rhetoric that posits a partisan symmetry is deceptive to the extent that it obscures that. I think a Republican President + Republican Senate + Repubican Judiciary will take the opportunity to create additional super-majorities and veto points; it is the natural politics of government by, for and of the rich and powerful, dominating and exploiting the majority. Threats to go “nuclear” in the Senate, and follow the Constitution, are just kabuki; the filibuster exists to frustrate a majority. No self-respecting plutocrat wants to spread the wealth enough to form a durable majority; it would be a irreconcilable contradiction. Justice Alito clearly wants to create a Judicial delaying veto, as an extension of the traditional power of judicial review.

    Remember how the Republicans got rid of the Independent Prosecutor.

  10. “Remember how the Republicans got rid of the Independent Prosecutor.”

    Remember that getting rid of the Independent Prosecutor was just a response to a Democratic President spiking the system by refusing to have any more appointed, even when the law demanded it…

    Any solution based on a simple agreement between the parties will fall apart sooner or later, probably sooner, for the simple reason that Republicans really DO find Democratic nominees unacceptable, and visa versa. Our concepts of the proper role of judges in our government are radically different. Disjoint, even.

    Once the idea was legitimized that a judge occupies a policy making, rather than implementing position, the total politicization of judicial appointments was inevitable. Appropriately so. In a democracy, decision makers MUST be democratically accountable. If somebody is going to make decisions, rather than implement them, they have to be chosen on the basis of what decisions they will make. And the parties will, of course, disagree.

    Any solution, in order to work, would have to be implemented at a constitutional level, by amendment. I have previously proposed that we amend the Constitution to make the system for nominations work like the system for passing laws: Just as the President has a finite amount of time to respond to a bill, or it automatically becomes law without his action should the period not end in a recess, I suggest we constitutionally mandate that Presidential nominations be automatically confirmed if not voted down within some reasonable period, say, two months. With the exception that, should the two month period cross an election, the nomination is automatically denied. (We don’t want to encourage Presidents to dump all their nominees in a little window just before elections.)

    To balance this transfer of power to the executive branch, I’d propose that the power to make recess appointments be severely curtailed. They should, constitutionally, be of very short duration, and carry with them a bar against the subject of the appointment ever being permitted to hold that position again. (Which informal rule is already in place, but doesn’t seem to stop repeat recess appointments, if the President just doesn’t care.) The principle that the President does NOT get to fill positions without Senate approval must be reinforced, once Senate negligence has been ruled out.

    I don’t expect much support here for this proposal, for a number of reasons.

    1. Most ‘liberals’ are living constitutionalists, and the legitimacy of that position depends on a claim that the amendment process is somehow broken, rather than simply not being used anymore. Accordingly you’re committed to not using it, as that would undermine the legitimacy of everything you’ve gained by not using it…

    2. Your President is in the White House, and you’re likely to lose the Senate next year. So you’re currently working up rationalizations for essentially running the whole government from the Executive branch, including, (See above) wholesale recess appointments to circumvent the requirement for Senate approval.

    But that’s my proposed fix, anyway. I’d really like something more radical, but I think the states might be willing to ratify this one.

  11. During the GW Bush years, right-wingers fulminated against Senate filibusters, especially judicial filibusters,and made all sorts of proposals about ways to end/circumvent them; but left-wingers were quiet. Now the roles are reversed. (The only person I’ve seen make a principled argument on this point is Matt Yglesias, who advocated abolishing Senate filibusters entirely, back when the Republicans had the White House and a Senate majority.)

    So this post kinda misses the point. What’s needed isn’t some new way to end filibusters … the National Review had lots of them 5 – 10 years ago. What’s need is a majority of the Senate willing to change the way the system works. And I see no suggestions about why there’s such a majority available today when there wasn’t in the past.

  12. Rather than tweak an inherently anti-democratic rule set, why not just propose a Constitutional amendment to abolish the Senate? Then at least we’d be talking about the basic problem, which is the fact that neither the Democratic majority (of 2008) nor the Republican majority (of 2010) have been allowed to govern.

  13. I think I mentioned why they won’t propose that amendment. They can’t seriously propose any amendments, because that would be an admission the amendment process can work, and most of the power-grabs of the 20th century were justified by the claim that the amendment process didn’t work anymore, and so has to be circumvented.

  14. Brett, I wasn’t proposing that we wait until “they” propose the amendment.

  15. Don’s proposed amendment to abolish the Senate is forbidden by Article Five of the Constitution.

  16. How about this for a system to reform the filibuster without getting rid of it entirely. The rules are as follows:

    1. The President can only nominate the same individual to the same bench once per term.
    2. The President’s first nominee for a judicial opening requires 60 votes for cloture. HOWEVER…
    3. If cloture fails for the first nominee, the second nominee for that same bench only requires 57 votes for cloture. If there is no cloture for him/her, the third nominee only requires 54 votes for cloture. The fourth and subsequent nominees require a simple 51 vote majority to end debate.

    So if the President nominate the most left-wing/right-wing choice on the first attempt, it gets shot down. But if he nominates someone who is not the most desirable/undesirable, the opposition faces a dilemma — if they don’t allow cloture, the President can nominate someone more left-wing/right-wing on the next attempt and they will face a lower cloture threshold.

  17. Michael Masinter: Article V doesn’t forbid abolishing the Senate, just abolishing it without the consent of each state. Obviously that’s a high bar, especially if you cynically assume that small states would rather be over-represented unfairly, than do the right thing, but it’s not impossible to get over. It wouldn’t be hard to persuade most people that what we have now isn’t working.

  18. Article V doesn’t forbid altering the powers of the Senate, either. It could, by amendment, be reduced to a ceremonial body with no actual power, so long as the states were equally represented in it. But, really, why discuss a proposal most of the states would oppose? On a population basis ten of the largest states would essentially run the country if the Senate weren’t standing in their way; Do you think there’s the slightest chance the other 40 would ever open the way for that?

  19. We should discuss it because the Senate is undemocratic. That’s not something we stop talking about because changing it would be difficult.

    And the discussion would be worth having, so we could talk about what we have in common other than geography. Liberals in South Dakota have more in common with liberals in New York than with their conservative neighbors. Conservatives from California have plenty in common with my right-wing neighbors in Iowa. Representation for my state matters a lot less to me than representation for my politics.

    But if all you want is a small change in the Senate rules, I can’t think of a better way to make it happen than to threaten to fire all 100 senators.

  20. I liked the gist of Brett’s proposed amendment — to put a deadline on confirmation, balanced by a more limited power to make recess appointments. When the Congress met once a year in December for, sometimes, only a few weeks, the President’s power to make a recess appointment was vital. Now the Congress meets throughout the year; recess appointments are nothing more than a political tactic in the on-going struggle with Congress. Time to change the rules.

    Brett is, of course, completely wrong about the doctrine of a living constitution depending in any way on a claim that the amendment process is obsolete or unworkable. Lots of liberals worked tirelessly for the Equal Rights Amendment, without ever conceding the dead constitutionalist doctrine that the 14th amendment means only that the Fox News projection determines the outcome in close elections.

  21. Right, the ERA, which was last approved by Congress nearly 40 years ago, the drive for which died 32 years ago? What constitutional amendments have liberals attempted since?

  22. Brett, I cannot follow your argument. You seem to be saying that we should not pursue a constitutional amendment because we have not done so lately. Or perhaps that we should not do so, because certain powerful people won’t give us permission to try. Neither one is persuasive in the least.

  23. I like Brett’s proposal, but does it actually require a constitutional amendment?

    The Constitution does not say that a President’s appointment requires a positive confirmation vote before taking effect. It says is that appointments must be made with the “advice and consent” of the Senate. The Senate has not rejected the nominees, they have simply refused to respond. The President could say that he construes willful non-response as consent, and have the nominee start work.

    Or he could seek consent in some other way, such as a personal letter from 51 senators stating their consent. If you want to dress that up he could also request their advice before making nominations, again with individual letters.

    Or the President, or Vice President as President of the Senate, could insist that the Constitution requires the Senate to provide advice, and also to state whether it consents. The Constitution trumps Senate procedural rules, so they could use that to hold an advisory discussion with the whole Senate whenever the President wants. Once he feels he has received enough advice, the President could announce his nominee, and say, “Do you consent or refuse?”, prompting an on the spot Consent or Refuse vote.

    Remember that they’ve already dropped the advice part of that clause entirely, without any law or amendment. Exactly one time, Washington went to the Senate chamber to get the Senate’s advice before making a nominee. Then he decided that they had wasted his time, and so he never went back. This is only hard if you make it hard.

    What do folks think of these ideas?

  24. I think they’re blatant sophistry, and not even very good sophistry. They wouldn’t pass the laugh test.

    “Brett, I cannot follow your argument. You seem to be saying that we should not pursue a constitutional amendment because we have not done so lately. Or perhaps that we should not do so, because certain powerful people won’t give us permission to try. Neither one is persuasive in the least.”

    I’m not arguing that you shouldn’t. I’m arguing that you won’t.

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