Judicial Filibusters: Who Started It? And Why Does It Matter?

 The Democrats did.  And it doesn’t matter: they were right to do so.  Here’s why.

The GOP filibuster of Goodwin Liu (who has since withdrawn his candidacy) has led to all sort of recriminations.  “You violated the “Gang of 14” agreement!”  “Oh yeah?  You filibustered Miguel Estrada.”  And on and on.  Dahlia Lithwick suggests that it’s pointless to even figure this out.  I disagree.

Using advanced research techniques unavailable to full-time reporters, I went to the library and consulted The Federal Appointments Process by Professor Michael J. Gerhardt of the University of North Carolina Law School.  Gerhardt’s book is something of the standard work in the field.  He explains that when it comes to blocking Presidential appointments of circuit and district court judges, the key event was the Republican takeover of Congress in 1995.  As I mentioned a few days ago, this was a typical Gingrichist move: break the informal institutions of American governance.  Obviously, it wasn’t Gingrich himself: he was in the House.  But the “Republican Revolution” dragged Senators along with it, especially because so many of them had been member of the minority GOP House caucus.  Thus, as Gerhardt observes:

President Clinton’s federal district and appellate court nominees confronted historic delays.  For instance, 1999 was a historic year for the Clinton presidency not only because of the president’s acquittal in his impeachment trial but also because by mid-year the Clinton Administration had only two judges confirmed — the lowest number ever confirmed midway through a nonelection year.  Moreover, the statistics for some other years are striking.  For instance, the percentage of President Clinton’s judicial nominations confirmed in 1997 — 47 percent — is significantly lower than the percentage of judicial confirmations for any president (except for Clinton’s own record the previous year) over the past four decades.  In 1998, the percentage of judicial nominees confirmed climbed well back into the respectable range at 79.5 percent.  Though 101 judges were confirmed in 1998, the numbers of confirmed judicial nominees in 1997 and 1999 were each lower than the number of President Reagan’s judicial nominees confirmed in 1998 (41) and the number of President Bush’s judicial nominees confirmed in 1992 (66), both of which were election years. (167-8).

This pattern followed the Republicans’ changing of the “Blue Slip” rules in 1995, in order to make it much easier to block Clinton judicial nominations.  (They then changed the rules back in 2001 when Bush became President).  Kevin Drum explained this in a classic 2003 post.  Remember — this behavior represented a complete change from the traditional informal understandings about what happens when the President is of a different party than the Senate majority.  Democrats came nowhere close to doing this when they were in the same position with Nixon, Reagan, or Bush I.

Was all this because of intransigence on Clinton’s part?  Not at all.  After 1994, explains Gerhardt, with

a Republican majority in the Senate, the Clinton Administration became more seriously committed to avoiding controversial judicial appointments and preserving precious political coinage for other important legislative initiatives.  The Clinton Administration consulted widely on appointments with people outside the administration, including senators, representatives, state and party officials, and civil rights leaders and other interest group leaders.  By frequently floating various names before the media or the Senate in the hope of determining which had the likeliest change to win confirmation or make the largest number of people happy, the Clinton Administration effectively transformed consultation into a preview of or substitute for the confirmation process. (122).

Essentially, the Clinton Administration was practically begging the GOP to take someone — anyone — for the federal bench.  And the Republicans turned it down, thinking that they would run out the clock and hope to get unified control in 2000 (which it did thanks to the Supreme Court).

So if you are the Democratic caucus in 2001, this is what you see: 1) the Republicans completely changed the rules from 1995-2000; 2) this left dozens of vacancies that would not have been there had the old rules applied; and 3) are now in a position to fill them from a President who is in the White House only because of a Supreme Court coup.  Anyone who wouldn’t filibuster in those circumstances is a sucker.  Yes — the Democrats were the ones who started the greater use of judicial filibusters.  And that was completely reasonable given the situation that they were in.

But there is one crucial caveat to all of this.  Why did the Republicans change the rules so drastically in 1995?  Was it petty partisanship?  Not at all.  It was grand partisanship.  From its very inception, Movement Conservatism aimed to transform the federal judiciary.  It was an article of faith that the Warren Court had perverted the US Constitution.  This is why the Federalist Society became so influential so quickly.  It was why Reagan nominated Robert Bork, who had expressed skepticism about Brown v. Board of Education.  And it was why the Democrats blocked Bork, to their everlasting credit, saving the country from a genuine reactionary.

We can see this even today.  Consider Justice Scalia’s hissy fit dissent in Brown v. Plata, the case decided this week concerning the appalling conditions in California’s prisons.  Much of it is devoted to arguing that the remedy in this case — the so-called “structural injunction” — is illegitimate and probably unconstitutional.  Structural injunctions are essentially a series of ongoing orders to public institutions to change their practices.  They are far-reaching, difficult, complex, and sometimes counterproductive.  And they are often necessary.  If courts really got rid of structural injunctions, then both Brown v. Board of Education (“Brown II”, concerning the remedy) and Reynolds v. Sims (the “one-man, one’vote” decision) would never have occurred.  And that is what Movement Conservatism wants.  The Court’s conservatives are still trying to get rid of desegregation remedies.

The Republican judicial campaign in the 1990’s and today is essentially designed to take the courts back before the 1950’s.  That is its program.  When the Democrats saw this, they filibustered.  I believe that they were right to do so then, and they are right to complain about it now.  But you cannot divorce substance from procedure.  Do you believe that the federal courts should attempt to force other institutions to protect civil rights?  Democrats say yes, Republicans say no (with the important and not irrelevant exceptions of guns and private property rights).  That’s the argument.  It’s a real argument.  But that is the ground on which it should be waged.

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.

23 thoughts on “Judicial Filibusters: Who Started It? And Why Does It Matter?”

  1. Bravo again, Jonathan!!! Thank you.

    I read Plata and Scalia’s origami of the Constitution in that 2nd Amendment case. He is becoming a joke.

  2. What’s funny is, on the substance, he was right. Self-defense is an inherent right, so inherent that no one bothered to write it down in the Bill of Rights. It was inconceivable that anyone would ever question is. Sort of like … privacy.

  3. My other comparison was to fridge poetry, you know those magnetic words people play with on the fridge? He did so much tap-dancing in that opinion. (“Pay no attention to that word ‘militia’…”)

    But like I said, on the actual right to defend your home, I’m right there with him. Handguns in particular, maybe not necessarily, but that’s a detail.

  4. “And it was why the Democrats blocked Bork, to their everlasting credit, saving the country from a genuine reactionary.”

    But let’s be clear on what “blocked” means here: the Democrats didn’t prevent a vote from going to the full Senate, and it was there that he was voted down, 58 to 42. As a Democratic partisan, I would have zero problem if the Republicans in the Senate “blocked” every Obama nominee in this manner, by voting as a bloc and convincing a few Democratic Senators to vote with them.

  5. I think it was perfectly appropriate for Republicans to block the judicial nominees of a President under impeachment, whose judicial nominees had already proven to be corrupt. (I’m referring to the revelation that Clinton nominated judges in the DC circuit held regular meetings from which judges nominated by other Presidents were excluded, and conspired to bypass the random assignment of cases to make sure all Clinton related matters were heard before them, and nobody else. I suppose you could call that a sort of anti- recusal policy, and it was fundamentally, inexcusably corrupt.)

    It’s akin to taking somebody’s key to the cash drawer, while they’re under prosecution for embezzlement.

  6. @ Anon37

    Which is precisely why Johnathon points this out as another example of Gingrichism at work: the Democrats allowed Reagan’s nomination of Robert Bork to come to the Senate floor for a vote. Bork lost the vote. The process worked as the informal institutions were structured to work. Reagan made his nomination, hearings were held, a vote was taken and Reagan’s nominee was not confirmed. Stuff happens.

    Contrast this with Gingrichism: when you don’t like the nominee, but you know you’ll lose the vote, then don’t allow the vote to take place. The result is the same as the result when the old informal institutions held: Liu’s nomination isn’t confirmed.

    This attitude is untenable without the view of Gingrichism: only end-results matter, processes are unimportant. This might also be called Sanders-ism. Sanders told a summer PE workshop group, “Men, I’ll be honest: winning isn’t everything. Men, it’s the only thing.” (This is often attributed to Vince Lombardi, who apparently lifted it from Sanders.) Or, call it Lombardi-ism if you like. The fact is, process does matter. That’s why we have officials on the football field, rather than a free-for-all. Process matters.

    Until the GOP starts believing that process matters, we’re going to be stuck with dyfunctional politics.

  7. I’ll believe Democrats believe process matters, when you resume using Article V when you want changes to the Constitution.

    I will say, though, I’ve got no problem with what happened to Bork. Inkblot, indeed… The man didn’t belong within 50 miles of the Supreme court.

  8. “Which is precisely why Johnathon points this out as another example of Gingrichism at work: the Democrats allowed Reagan’s nomination of Robert Bork to come to the Senate floor for a vote. Bork lost the vote. The process worked as the informal institutions were structured to work. Reagan made his nomination, hearings were held, a vote was taken and Reagan’s nominee was not confirmed. Stuff happens.”

    I agree: I just wanted to point out that Jonathan’s phrasing was inapt in that it inadvertently and unnecessarily weakened his case.

  9. The best post I’ve read on here. It really is naive to say, “Well, the Democrats did the same thing.” You show that, in fact, what they did was different. It won’t change many minds, but it can remind those on the left why we’re different/what we’re fighting for.

  10. “And the Republicans turned it down, thinking that they would run out the clock and hope to get unified control in 2000 (which it did thanks to the Supreme Court).”

    I think you’re suggesting that had the recounts stopped by the US Supreme Court been completed then Gore would have won Florida and become President.

    I don’t know how many people care at this point but I don’t think that’s true:

    From: http://en.wikipedia.org/wiki/Florida_recount

    “The results of the study showed that had the limited county by county recounts requested by the Gore team been completed, Bush would still have been the winner of the election. However, the study also showed that the result of a statewide recount of all disputed ballots could have been different….”

  11. It is rather amusing to think that Gore may have defeated himself, by an overly clever effort to game the recount. But the legislature was already gearing up to send it’s own slate of electors to the House, based on a (Somewhat valid, IMO) claim that the judiciary had altered the rules so much after the vote that the slate of electors THEY were going to generate wouldn’t have been selected “in such Manner as the Legislature thereof may direct”. Redundant slates of electors supplying votes to the House would have triggered a vote there on which slate of electors to accept, which would have been by state. IIRC, the Republicans had the numerical advantage on that basis.

  12. Larry, the recount ordered by the Florida Supreme Court, which was stopped by the US Supreme Court, was statewide. The notion that by ordering all the ballots counted the Florida courts had changed the law at all is partisan nonsense. Unadulterated Gingrichism. I nonetheless agree with Bellmore that one legislative body or the other would have intervened for Bush, and we’d have gotten no matter what the voters actually did.

    No liberal I know thinks that the Constitution is being ‘amended’ by Supreme Court rulings that go their way. Obviously, YMMV if you apply the Bellmore standard — by which one must consider Chief Justice Marshall’s 1819 opinion in McCulloch v. Maryland an ‘amendment.’

  13. It’s amazing how much pure BS and lies Brett ‘Still no proof of the constitution’ Bellmore can produce. I’ll just deal with one matter for starters – impeachment does not remove an official from the performance of their duties – as you would know if you ever read the constitution. I guess Brett is now in ‘penumbra land’.

  14. Indeed, it would amount to a violation of due process if not a Bill of Attainder to suggest that a President under impeachment be prevented from performing his or her duties absent a conviction and removal from office.

    Hey, by the way, what does “cruel and unusual punishment” mean, Brett? You ready to tackle that one yet, or are you still painted into that corner?

  15. The tactics that win battles are a strategic choice, which win wars. You cannot fight a war, without fighting and winning at least some battles. It isn’t enough to declare what is at stake in the war. The goal is not the means to achieve the goal.

    None of this matters, because the Democrats, the liberals, my peeps, have lost the war. Past tense. It was over when Bush was (re)elected; it was over when Obama was elected and continued Bush policy on the banks and on civil liberties and on the wars, reversing exactly nothing, and legitimating the goals of every Republican temper tantrum and extortion drama, from cutting Social Security and Medicare to the debt-ceiling. This post and the comments rehearse how the Democrats lost the war, without a reality-based acknowledgement that the war was lost. Past-tense. Done deal.

    Republicans haven’t been trying to return the country or the courts to the 1950s, whatever that might mean. They’ve been trying to establish a plutocracy: rule by and for a tiny minority of the uber-rich and giant business corporations. And, they’ve succeeded.

    Digging in your heals on a sandy beach, while the other team reels you across the line in a lost game of tug-of-rope, doesn’t help. A federal judge has ruled that a Corporation has a constitutional right to contribute to a political candidate’s campaign, and the Supremes are well set to confirm that. Habeas Corpus, the prohibition on torture, the Statute against Frauds — all these are just a good-bye, now; structural injunctions join a long list. (But, hey, gays can serve as cannon fodder; that’s something.)

    And, it isn’t just the judiciary, the legal system, the political system, it is the economy.

    The Revolution was televised, after all. Welcome to neo-feudalism.

  16. FYI, Brett, the DC Circuit is a different court. You know, the one where Judge Sentelle appointed Ken Starr.

  17. Brett: it is too bad that Hatch didn’t investigate at the time. It’s hard to tell if any of the allegations you linked to are true, since almost no one went on the record, lifetime appointments be darned. (No system is proof against people who lack a good brass pair.) I don’t think it’s all that rare for counts to get dismissed. But secretive meetings don’t look good, I agree.

    It does raise an interesting question. I don’t know much about how such an investigation would be handled – would another judge have to request it? I guess there is probably some discipline committee composed of judges somewhere? Those groups don’t always work so well. There were those recent disclosure problems at the Supreme Court. I guess it’s something that needs to be looked at.

  18. And speaking of the character of judges, those Plata dissents also completely lack any recognition that prisoners are human. To those clowns, it is just fine if some check-kiter dies from diabetes, or something else totally treatable, during his time-out. The only remedy for the family of such a person is to bring an individual suit, long after their loved one is gone, to try to wring some pennies out of a state government. (Good luck with that.) Are the bishops going to go after these guys? Deny *them* Communion? Of course not. They have had such limited life experience, they should never have been on the bench in the first place. I’d rather have a guy with DUIs. I’d rather have an ex-wife beater.

  19. How much investigation do you need? Johnson was quite open about the diversions, the only question was whether systematically assigning cases related to a particular President to judges nominated by that President was unethical. And, frankly, if you don’t think that’s a no-brainer, no investigation is going to change your mind; As I said, it amounted to a policy of anti-recusal.

    Similarly, there’s no question that the meetings were taking place, they didn’t deny it. They just won’t tell anyone what they discussed at them. Again, if you don’t see anything improper in that, no investigation is going to change your mind.

    My point was simply that the refusal of the Senate Republicans to move Clinton judicial nominations had a context. A context which, of course, is conspicuously lacking in the case of Obama’s nominations. But the dearth of Obama confirmations isn’t due to Republican opposition, Liu was the first such filibuster. It’s because the nominations have also been conspicuously lacking…

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