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.

Disadvantages:

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.

[Cross-posted at Same Facts]

Jonathan Zasloff

Jonathan Zasloff is a professor of law at the University of California, Los Angeles.