The Senate Democrats’ decision to abolish the filibuster for presidential appointments except to the Supreme Court cannot be understood without remembering that Democrats played nice back in 2005 and were getting nothing in return from Republicans in 2013.
Forget the back-and-forth charges of situational hypocrisy. For Democrats, the issue was simple: fool me once, shame on you; fool me twice, shame on me.
Democrats held 45 seats in the U.S. Senate in 2005, the first year of President George W. Bush’s second term. That was more than enough to have filibustered any of Bush’s nominees for federal courts under the then-existing 60-vote requirement to cut off debate.
Admittedly, Democrats had played judicial hard ball in Bush’s first term. John G. Roberts Jr. won confirmation to the D.C. Circuit two years after his nomination and only after Republicans gained control of the Senate after the 2002 elections. And, in the minority, Democrats successfully filibustered Bush’s nomination of Miguel Estrada to the same court.
Republicans, with a fortified 55-vote majority in 2005, threatened to exercise the so-called “nuclear option” to change Senate rules to allow a simple majority to close debate on judicial nominations. In response, an unusual bipartisan coalition of seven Democrats and seven Republicans the so-called Gang of 14 promised out of “mutual respect and confidence” to allow votes on judicial nominees except in “extraordinary circumstances.”
The Gang of 14’s deal specifically allowed votes on three of Bush’s pending nominees: Janice Rogers Brown (D.C. Circuit), Priscilla Owen (5th Circuit), and William Pryor (11th Circuit). Confirmed with acquiescence from Democrats, all three have proven themselves to be solidly conservative in their judicial decisions.
Today, Democrats hold a 55-seat majority with Republicans in the minority. The Gang of 14 has dissolved. Four of the moderate Republicans are gone, replaced by three Democrats and a Democratic-caucusing independent. Only three of the GOP senators remain: Susan Collins of Maine, Lindsey Graham of South Carolina, and John McCain of Arizona.
Gone too is any sense of bipartisanship in the Senate’s Republican caucus or any sense of limits on the use of the minority’s power to thwart President Obama’s appointment powers. In Obama’s first term, GOP filibusters effectively shut down the National Labor Relations Board and the newly created Consumer Financial Protection Board; Obama circumvented the tactic in January 2012 by filling the posts with recess appointments.
GOP filibusters also blocked two of Obama’s first-term nominees for federal appeals courts: Goodwin Liu for the Ninth Circuit and Caitlin Halligan for the D.C. Circuit. In those nominations, Republicans at least made the pretense, however unconvincing, of criticizing Liu and Halligan for their legal views.
Over the past two weeks, however, Senate Republicans took the obstructionist tactic to a new low by blocking votes on Obama’s nominees to fill three vacancies on the D.C. Circuit. The nominees’ qualifications are beyond question: Patricia Millett, former assistant solicitor general and now a big-firm partner; Cornelia (Nina) Pillard, Georgetown law professor and successful Supreme Court advocate; and Robert Wilkins, sitting federal judge and former criminal defense lawyer. Only Pillard could be criticized in the slightest as outside some mythical legal mainstream.
Republicans argued instead that the D.C. Circuit had no need to fill the three vacancies a concern they never raised when Bush named four to the court. The real motive was blatantly partisan: they wanted to leave in place the existing balance between four Republican and four Democratic appointees. In fact, the court is not balanced: the six senior judges, all of whom continue to hear cases, include five Republicans and only one Democratic appointee. And none of the Democratic appointees is as far to the left ideologically as several of the Republicans are to the right.
In three successive Senate votes, only two Republicans Collins of Maine and Alaska’s Lisa Murkowski crossed party lines to close debate and allow up-or-down votes on the nominations. McCain and Graham, Gang of 14 alumni, reneged on the 2005 deal, as well as their more recent comments supporting the right of a president to get a Senate vote on his nominees.
With no hints of greater bipartisanship from the GOP minority in the future, Senate Majority Leader Harry Reid of Nevada decided his patience was exhausted. He brought all but three Democrats along with him in the final 52-48 votes [Nov. 21] that changed the Senate rules to allow a simple majority to give the Senate’s “advice and consent” to a president’s nominees except for the Supreme Court.
Republicans view the exception as hypocrisy: Democrats, they say, are reserving the right to filibuster a future Republican president’s nomination of an anti-choice justice. But the exception is less important than it looks. Only one Supreme Court nominee has been successfully filibustered in modern times: President Lyndon Johnson’s nomination of Abe Fortas to be chief justice in 1968. Democrats had the votes to filibuster Clarence Thomas in 1991 or Samuel A. Alito Jr. in 2006, but they were unwilling to pay the political cost of vetoing the president’s choices on ideological grounds.
For now, the change matters mostly to Washington insiders: only one-fourth of Americans even knew about the now discarded 60-vote requirement. Senate Minority Leader Mitch McConnell of Kentucky complained Democrats were exercising “raw power.” And so they were: the power constitutionally entrusted to a Senate majority.