Judicial Confirmation Crisis
The D.C. Circuit now has four vacancies out of eleven seats.
Jeffrey Toobin brings us up to date on a problem that’s been festering for more than a decade: the inability to get qualified judges through the Senate.
Without sixty votes, it’s now virtually impossible to accomplish anything in the contemporary United States Senate.
This senatorial entropy has taken an enormous toll on President Obama’s judicial appointments. This was the second time that Halligan received majority support, but, because she never passed the threshold of sixty, her nomination now appears doomed. And so, in the fifth year of his Presidency, Obama has failed to place even a single judge on the D.C. Circuit, considered the second most important court in the nation, as it deals with cases of national importance. (Its judges—like John Roberts, Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg—also often wind up on the Supreme Court.) The D.C. Circuit now has four vacancies out of eleven seats.
During the last Bush Administration, Republican Senators grew so frustrated with what they called Democratic obstruction of judicial nominees that they threatened to change Senate rules to limit filibusters on judges. In 2005, the bipartisan “Gang of Fourteen” Senators announced a truce. Democrats agreed to allow votes on Bush’s nominees in “all but extraordinary circumstances,” and they kept to the deal. Bush’s second-term appointees (including two to the Supreme Court) proceeded without obstruction. At least technically, the Gang of Fourteen compromise is still in effect. But Republicans have essentially ignored it—as the Halligan filibuster demonstrated.
The specific case is question is DC Circuit nominee Caitlin Halligan. Her offense?
Halligan is impeccably qualified to be a judge—she’s a career government lawyer from New York—and she enjoyed broad support among members of both parties in the legal community. Opposition to her focused almost completely on a single brief she wrote for her boss, then-New York Attorney General Andrew Cuomo. Cuomo had sought to make gun manufacturers legally responsible for some of the violence in New York, a position that the National Rifle Association opposed. The N.R.A. punished Halligan for doing her job for New York, and the Senate Republicans followed.
Without delving into the brief itself, I’m inclined to disagree with the notion that gun manufacturers should be held responsible for the criminal use of a legal product, particularly in light of the 2nd Amendment. But it’s not an extremist position. And, certainly, writing a legal brief for one’s boss isn’t an indicator one way or the other of agreement with the position argued.
Further, while this is indeed a case of “both sides do it”—as Toobin already noted, frustration during the Bush administration over this issue brought up the “nuclear option” debate—it’s gotten much worse with Republicans in opposition.
In his first term, especially in the first two years, Obama himself bore much of the blame for this. When Democrats controlled sixty Senate seats, Obama was slow to nominate lower-court judges, and his moment of greatest leverage passed. But, since the 2010 midterm elections, Republicans have been at fault, almost entirely. Most nominees are not formally stopped, as Halligan was, but rather are delayed and delayed. Bush’s nominees got votes within weeks; Obama’s take months, even for uncontroversial selections. William Kayatta, Jr., nominated to the First Circuit, waited three hundred days for a vote and then received eighty-eight votes for confirmation. Republicans delay because they can. “The Republican Senators are not punished for it, and they are rewarded by their base,” a senior administration official said.
There’s an argument to be made for high level scrutiny being applied to federal judges generally—it’s a lifetime appointment, after all—and for appellate judges in particular—they set precedent that guides thousands of cases. While my longstanding view is that a 60 vote requirement for confirmation is extraconstitutional, if not unconstitutional, I’m amenable to the argument that judicial nominees ought to be well within the mainstream; presidents shouldn’t be able to radicalize the legal system for decades to come by virtue of a slim Senate majority.
But we’re well past that. Senate Republicans aren’t standing firm against radical judges but against Democratic judges. And, no, the two aren’t synonymous; the American people have, after all, elected a Democratic president two cycles in a row and Democrats got more votes for both the House and Senate as well.
As Toobin notes, there doesn’t appear to be a solution in sight. Both parties have come close to invoking the so-called “nuclear-” or “Constitutional option,” which would require a straight, up-or-down, vote for judicial nominees, and balked. Not unreasonably, they figured that they would one day be back in the minority and might want the ability to block truly objectionable nominees. And, sadly, relying on the integrity and collegial good will of the minority party to use their extraordinary power only in extraordinary cases isn’t working.
There may be a middle ground option, whereby judicial nominees would be required to obtain, say, 55 votes for confirmation in exchange for the inability to filibuster or otherwise block a vote. In most cases, that would mean at least a couple of votes from the opposition party. In all cases, it would seem enough of an indicator that the nominee isn’t an extremist. But even that sort of compromise is unlikely to be achievable in the current climate.