Mind if I get a little cranky?
I’ve been reading commentary, from both liberal and conservative perspectives, that explains the presence of a Democratic majority on the full D.C. Circuit Court as a result of Senate Majority Leader Harry Reid’s decision last year to “go nuclear” on the Senate filibuster, imposing simple-majority cloture.
That’s not technically wrong. But it’s not really correct, either.
The underlying story isn’t about the filibuster at all. The reason that the majority of the court’s judges was appointed by Democrats is very simple: Barack Obama was elected president in 2008 and 2012. Oh, and since 2007 the Senate has had a unified Democratic majority, as well.
Under such conditions, the natural course of events was for Obama to nominate, and the Senate to confirm, judges to openings on the federal bench. That didn’t happen. Instead, the Senate minority blockaded three seats on the DC Circuit Court, and pledged to continue defeating any nominees for those positions for the duration of Obama’s second term. Not only was this unprecedented, as far as I know the notion of reflexively blocking all presidential appointments had never occurred to a Senate majority before, let alone a minority. Yes, individual appointments to the federal bench had been blocked over the years for various reasons, including some partisan ones. And yes, during George W. Bush’s presidency, as the filibuster war escalated, Democrats targeted a handful of nominees who they considered “extreme.” And at the very end of a presidency it’s not unusual — it may be even reasonable — for the Senate to shut down nominations for lifetime appointments.
But three circuit court seats? Blockaded for a full presidential term? No way.
Given the election of a Democrat to the White House and a 55-to-45 Democratic majority in the Senate, Reid absolutely had to react. My point isn’t that presidents should automatically get all their nominations confirmed. Indeed, it’s very unfortunate that the Senate went nuclear; I actually support cloture by supermajority for judicial appointments. But the system can’t work if the minority abuses its rights.
Identifying Reid and the Democrats as the key actors in the confirmation fight gets everything backward. From 2009 to 2013, Republicans began treating the routine nomination and confirmation of judges as some sort of extraordinary power grab. They accused Obama of “packing” the courts merely by exercising his constitutional obligation to appoint judges to vacancies. That intransigence made the filibuster untenable. When Republicans refused to abide by longstanding institutional norms, majority-imposed reform became necessary for the Senate to function at all. That’s not a story about Obama, Reid or Democrats. The decisive actors were Republicans. We shouldn’t suggest otherwise.
[Cross-posted at Bloomberg View]