One of the more common complaints from Senate Republicans lately is that Dems “abuse” the filibuster by using it too often. It’s an inherently subjective complaint — is blocking 10 right-wing judges excessive? — but the argument is not entirely without merit. When it comes to judicial nominees, there have been more filibusters in the past few years than the historical norm.
But the part of this debate that is often overlooked is why the filibuster has become so common. It’s not Dem “obstructionism” or even White House fondness for unqualified extremists, but a variety of changes to Senate rules that leave Dems with literally no other options.
Just 10 years ago, a Senate minority had several avenues for affecting a president’s judicial nominations, from closed-door maneuvers within the Judiciary Committee to quiet negotiations with the White House.
Now there is only one sure way, and it isn’t quiet at all: the filibuster.
The gradual disappearance of other levers of influence is an often overlooked cause of the battle over judicial nominations that is raging in Washington. Both parties have played a part, with the result that the Senate stands on the brink of a governmental crisis.
In “the good old days,” the entire nominating process bore little resemblance to today’s practices. Presidents, for example, would routinely pull or avoid judicial nominations if they thought Senate opponents would put up a fight or make an issue of the would-be judges, whereas now Bush intentionally picks fights by selecting judicial nominees he expects to draw the Dems’ ire.
But even when controversial judicial nominees reached the Senate for approval in previous years, filibusters were rarely necessary because of the multitude of other alternatives. The Wall Street Journal’s Jeanne Cummings wrote a good piece today detailing the changes in these options over the years.
The chipping away at minority influence began in the 1970s when Democratic Sen. Ted Kennedy of Massachusetts, then chairman of the Senate Judiciary Committee, attempted to dilute the ability of a senator to employ a common tactic for blocking unwelcome nominations. It was called the “blue slip” — named for the color of the paper used by the chairman to inform senators not on the committee that the White House had submitted a judicial nominee from their states.
A senator could object by checking off his or her disapproval or by refusing to return the blue slip to the chairman. For decades, opposition from a home-state senator was enough to kill a nomination. As a result, the blue slip was most commonly employed as a lever for forcing negotiations with the White House.
As President Jimmy Carter sought to put his stamp on the federal bench in the late 1970s, Mr. Kennedy proposed a new blue-slip policy. It allowed the Judiciary chairman to override a home-state senator’s objection if he concluded that opposition was based on race or sex. The Massachusetts liberal met only mixed success, however, as other senators continued to respect the traditional blue-slip process.
As it turns out, Kennedy’s changes were mild and inconsequential compared to rules Orrin Hatch started using during Clinton’s presidency. As chairman of the Judiciary Committee, Hatch abandoned every rule that Dems followed, then, as Kevin Drum noted not too long ago, created new ones as he went along.
* In 1998, for no special reason, Orrin Hatch decided that only one senator needed to object to a nomination. This made it easier for Republicans to obstruct Bill Clinton’s nominees.
* In 2001, when one of their own became president, Hatch suddenly reversed course and decided that it should take two objections after all. That made it harder for Democrats to obstruct George Bush’s nominees.
* In early 2003, Hatch went even further: senatorial objections were merely advisory, he said. Even if both senators objected to a nomination, it would still go to the floor for a vote.
* A few weeks later, yet another barrier was torn down: Hatch did away with a longtime rule that said at least one member of the minority had to agree in order to end discussion about a nomination and move it out of committee.
This is why we’re seeing more filibusters of judicial nominees than ever before. When left with no other options, Dems are clinging to the only alternative still available. And to hear Republicans tell it, even this choice must be eliminated, just like the others.
The GOP has clearly misidentified the exploitation here — Dems aren’t abusing the filibuster, Republicans are abusing their power.