A Judicious Compromise

David Broder suggests a possible compromise over the judicial fight that’s threatening to shut down the Senate.

A Judicious Compromise (WaPo, B7)

Here is what should happen: The Democratic Senate leadership should agree voluntarily to set aside the continued threat of filibustering the seven Bush appointees to the federal appeals courts who were blocked in the last Congress and whose names have been resubmitted. In return, they should get a renewed promise from the president that he will not bypass the Senate by offering any more recess appointments to the bench and a pledge from Republican Senate leaders to consider each such nominee individually, carefully and with a guarantee of extensive debate in coming months.

Why should the Democrats be the first to step back from the abyss of the “nuclear option,” the possible rules change that would eliminate all judicial nomination filibusters and thereby make confirmation possible with 51 — not 60 — votes?
The principled answer is that elections matter. Voters placed Republicans in control of the White House and the Senate, and while the opposition still has a constitutional role to play, at the end of the day that function has to be more than talking important matters to death.

But there are also practical reasons for the Democrats to take this path. Their tactical position is weak. The Judiciary Committee cleared two more nominees last week. The Republicans — with Vice President Cheney in the chair — could well muster the 51 votes needed to change Senate rules and abolish judicial filibusters. If that were to happen, Democrats have said they would use every rule and procedure available to them to bring the work of the Senate to a halt.

Building such a roadblock to consideration of such important legislation as energy, Social Security, welfare reform and the routine financing of government would bring down deserved public condemnation, and the mighty megaphone of the White House would ensure that Democrats took the brunt of the blame. Democrats need to remember what happened to Newt Gingrich when he shut down the government for a few days in 1995 in a budget dispute with President Bill Clinton. It was not Clinton who lost public support.

In addition, if the judicial filibuster were ended by a vote of the Senate, it would vanish entirely. By yielding the right to filibuster these specific court appointees, the Democrats could deny the Republicans any immediate pretext for changing the rules — and preserve the possibility of a filibuster should Bush later submit someone they find seriously objectionable for a vacancy on the Supreme Court. The leverage they relinquish today might be much more important to them tomorrow.

Something along these lines makes sense, even if it’s unlikely in the current climate. Less than twenty years ago, Antonin Scalia was confirmed to the Supreme Court by a unanimous vote (98-0). There should be a bipartisan consensus that highly qualified judges whose ideology aligns with that of the president should be confirmed absent serious ethical considerations.

The routine filibuster, or threat of same, of political appointees turns the system of its head and actually weakens respect for the Senate as an institution. The advise and consent power is a necessary check and sometimes stops the confirmation of a candidate who would not have been nominated if properly vetted–say, a Lani Guinier. But if a mainstream nominee like Bill Pryor can be filibustered to death, then it’s hard to take the opposition seriously when there is genuine cause for concern.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Tbird1107 says:

    Broder also notes “The balance of power in the Senate is not in a right-wing cabal; it is in the moderate center.” That’s at least what it should be. Caving in to extreme views from both ends of the spectrum doesn’t solve the problem.

  2. wavemaker says:

    I agree entirely that “the advise and consent power is a necessary check and sometimes stops the confirmation of a candidate who would not have been nominated if properly vetted.”

    The question is what happens when the Republican majority on the Judiciary Committee votes on straight party line for candidates that, in all honesty, are less than stellar (but very well politically connected). As long as the majority party can keep their members in line, even poorly vetted nominees can be jammed through, both in committee and on the floor.

    Having spent the better part of the last two days researching all of these nominees, I must say that there are one or two who I wouldn’t mind seeing thrown under the bus.

  3. McGehee says:

    There have been major Supreme Court decisions (e.g., Roe v. Wade) written by judicial nominees who could have been considered extreme by Republicans when they were nominated.

    Vetting nominees for their ideology — a recent Democrat innovation — rather than their qualifications and temperament, is what introduces partisanship to the process.

  4. I don’t know that Guinier wasn’t “properly vetted”; rather, that a lot of people disagreed with her interpretation of the constitution (e.g. equal protection requiring proportional representation).

    Zoe Baird and the rest of the folks with “nanny problems,” on the other hand, may be more legit examples.

  5. James Joyner says:

    Chris: Maybe so. I don’t think the Clinton team would have nominated here had they realized the extremism of her views, which were certainly out of synch with Clinton’s policies.