Earlier this week, Senate Republicans halted the confirmation of Robert Wilkins to the D.C. Circuit, making it the third nomination to that court as part of President Obama’s court-packing plan to fail in the last month. Now there are reports that Senate Majority Leader Harry Reid (D–NV) may attempt to push through a rules change to stop this purported Republican “obstruction,” which was based on the D.C. Circuit being the most underworked federal court in the nation with no need for more judges.
Under the current rules, Senators may debate whether to confirm an executive branch and judicial nomination until 60 members vote to invoke cloture and end the debate. Reid hopes to lower that threshold to a simple majority of 51 votes, effectively ending the use of filibusters for nominations.
Senate Rule 22, however, requires 67 votes to change the rules. There aren’t 67 Senators who would vote to change the current rule, so to succeed Senator Reid will have to break the rules to change them. Reid set the stage for this rule change by (in Senator Chuck Grassley’s [R–IA] words) “manufacturing a crisis” over the D.C. Circuit—by rushing three nominations to that court ahead of nominations that had been pending longer and to courts that actually need more judges.
The proposed rule change may serve the interests of Senate Democrats today (as it might have served the interests of the Republican majority in 2005), but the history and nature of the Senate counsel against this “nuclear option.”
The Framers of the Constitution envisioned the Senate as a deliberative body: According to James Madison, while the House would be governed by majoritarian whims, the Senate would “consist in its proceedings with more coolness, with more system and with more wisdom.” George Washington famously commented that “we pour legislation into the senatorial saucer to cool it.”
Thus, the Senate is slower and takes time to debate issues—and filibusters further that goal. As former Senate Parliamentarian Robert Dove noted, the filibuster “forces the Senate to be bipartisan and if you eliminate it then you will turn the Senate into the House. The House, of course, is an incredibly partisan institution and the Senate would be an incredibly partisan institution.”
The same need for deliberation applies to nominations. The Constitution divides the power of appointing judges (and certain other executive branch officials) between the President and the Senate. The President may have a right to nominate whomever he chooses, but the Senate need not rubber-stamp those nominations. Indeed, for those given lifetime appointments (such as federal judges), the need for careful consideration is essential. The proposed rules change would constrain Senators’ ability to deliberate on nominations through the vital debate function as long as one party retained a bare majority.
Senate Democrats may be willing to go along with this change for now, but 31 of the 53 Democrats have never experienced life in the Senate minority. They may come to regret the decision to effectively eliminate the filibuster for nominations if in the future they become the minority party and no longer have a President who is a Democrat. As Senator Chuck Grassley (R–IA) put it, “Go ahead. There are a lot more [Antonin] Scalias and [Clarence] Thomases out there we’d love to put on the bench.”