Last week, Bouie argued that Democrats “can nuke the filibuster and defend the president’s prerogative, or, they can let the GOP establish a new precedent, where the Senate only confirms Republicans nominees”:
Yes, at several points during George W. Bush’s tenure, Democrats filibustered his judicial nominees. But the issue isn’t filibustering as much as it is the GOP’s categorical opposition to Obama’s nominees. His nominations have faced an unprecedented level of obstruction, leading to widespread vacancies and judicial emergencies. Overall, Obama has had fewer federal judges confirmed than either Bush or Clinton.
Beutler weighed in:
Republicans could just agree to confirm some of Obama’s judges. I think Democrats would probably drop the nuclear threat if Republicans cleared two of Obama’s three D.C. circuit nominees. Maybe Republicans could secure the confirmation of a third, more conservative judge, or get the remaining seat on the court eliminated legislatively.
But their current position — daring Dems to go all the way nuclear or cave completely — gives Dems almost no choice but to pull the trigger. If Republicans had meritorious objections to any of these nominees, the nuclear threat would be a disproportional escalation. Obama could find other judges. What they’re doing instead is a judicial replay of their unacceptable bid to unilaterally gut Wall Street’s consumer watchdog office and void the National Labor Relations Board. Democrats didn’t stand for that, and won. Republicans caved and confirmed several waylaid executive branch nominees over the course of just a few days. They should run the same play again. And if Republicans don’t fold, they should go nuclear.
Ramesh pushed back:
One of the vacancies Democrats are trying to fill used to be held by John Roberts. After he became chief justice, Bush nominated the impeccably qualified Peter Keisler for the spot. The Democrats filibustered him, and the seat has gone empty ever since. A reasonable case can be made against filibustering judicial nominations, or for it. What can’t reasonably be argued is that Democrats should be able to use the tactic to keep a judgeship open until they have the power to fill it with a liberal, at which point Republicans have to stand down.
Chait countered:
The judicial war, like the Israeli-Arab conflict, can be dated back to nearly any starting point, but as good a place to begin as any is 2005. That year, Senate Democrats began dramatically ramping up the use of the filibuster to block George W. Bush’s judicial nominations, whom they deemed ideologically extreme. That is the episode National Review’s Ramesh Ponnuru refers to recently in his defense of the current Republican Senate: “So when Democrats mounted an unprecedented series of filibusters against Bush’s appeals-court nominees,” Ponnuru writes sarcastically, “that was just normal politics.”But Ponnuru omits what happened next. Republicans, outraged over the tactics, threatened to use the “nuclear option,” to change Senate rules and end the judicial filibuster. The two parties huddled and agreed that Democrats would stop filibustering judges except in the case of “extraordinary circumstances.” The Democrats then dropped filibusters even for highly ideologically nominees, like Janice Rogers Brown. That agreement held, more or less, ever since. As recently as this past June, Republican senators like John McCain agreed that Republicans would not filibuster Obama’s nominees, because “There has to be extraordinary circumstances to vote against them.”For reasons that remain unclear, Senate Republicans have since decided to block Obama’s nominees to the D.C. Circuit Court, the country’s second-most-powerful court, en masse.
Sarah Binder looks at a larger data set:
First, most observers note that the GOP’s judicial blockade is unprecedented. I’m not so sure. Jonathan Chait observed in New York magazine on Wednesday that the Republican filibusters represent a “difference of degree that amounts to a difference of kind: They [the GOP] have declared their intent to impose permanent vacancies in Obama’s administration and in three swing seats in the crucial D.C. Circuit Court.” Others are bolder: Brian Beutler argues in Salon that the GOP’s “nullification strategy is radical, and entirely new.” The GOP’s rationales for blocking Obama’s D.C. Circuit appointees are certainly brash (and arguments about the circuit’s caseload have been effectively challenged). But along one dimension at least, GOP targeting of the D.C. Circuit reflects a more enduring partisan tactic in the wars over bench: Both parties for years have aggressively opposed nominees slated for appellate courts that are “balanced” between the two parties’ appointees.
Since 1981, 70 percent of nominees for circuits bending in favor of either Democratic or Republican appointees have been confirmed; over the same period, only 58 percent of nominees to evenly or near-evenly split courts have made it to the bench. Even if we control for the other forces that tend to depress the chances of confirmation (such as divided party government or the run up to a presidential election), nominations to split circuits are still less likely to be confirmed.
The Dish 