Last night, Senate Republicans filibustered a third nomination by President Obama for the D.C. Circuit Court. The current judicial standoff features some of the same tactics that the parties have used against each other — filibusters, threats to end the filibuster, opportunistic claims about court vacancies, grievances from past fights — for years and years, with each side hypocritically flip-flopping on the procedural question. Some of the tactics Republicans are using against Obama now are the same ones Democrats used against George W. Bush and other Republican presidents.
At the same time, much as they did with the debt ceiling, Republicans have also escalated the conflict by adapting a novel tactic that essentially nullifies the results of the presidential election. They have expressed opposition not to the credentials or ideology of a particular Obama nominee, but have instead argued that Obama has no right to alter the existing ideological balance of the courts. Also like the debt ceiling, they have lurched into a showdown without acknowledging, or perhaps even realizing, the full severity of what they are doing.
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. “There is no reason to upset the current makeup of the court,” argues Charles Grassley. Democrats have “admitted they want to control the court so it will advance the president’s agenda,” says Mitch McConnell.
This – unlike many of the arguments of convenience deployed in such fights — is a perfectly blunt account of both side’s beliefs. Democrats want to nominate judges who share the Democratic legal philosophy, which tends to treat the Democratic policy agenda as constitutional. Republicans want to keep the courts as Republican as possible, because Republican judges are more likely to strike down laws passed by Democrats.
The bluntness of the account reveals its radicalism. Previous judicial fights have revolved around the question: How personally or ideologically unacceptable must a judge be to merit rejection? Republicans are now arguing that Obama’s nominating judges to vacancies on the court is illegitimate per se.
Democrats, in response, are using the same nuclear-option threat Republicans used in 2005 (and which Democrats used to open a blockade on executive-branch appointments earlier this year). That is certainly a troublesome remedy — it would give a president whose party controlled the Senate nearly unlimited leeway to seat ideologically congenial judges on the federal courts. The ideal solution would somehow compromise between the president’s absolute power to seed the judiciary and the Senate minority’s absolute power to blockade it.
But the proposed nuclear-option remedy is less extreme than the power demanded by Senate Republicans. Some of them seem unaware of the full weight of what they’re demanding. "It would be really bad form," said Tennessee Republican Bob Corker, "if every time someone has concerns about nominees the nuclear option comes up, you might as well be at a 51-vote threshold." Of course Republicans don’t have “concerns” about these particular nominees. They have concerns about any Obama nominee for those vacancies at all.
Conservatives have accused Obama of “packing” the courts, yet the term applies to their own behavior. “Court-packing” dates back to Franklin Roosevelt, who, stymied by a conservative Supreme Court, proposed to increase its size to allow him to fill it with sympathetic jurists. Packing meant changing the court’s size in the middle of the game to benefit his agenda. Senate Republicans are doing the same thing through the opposite method: Rather than opportunistically increasing the size of the court to increase the president’s appointment influence, they are decreasing it to diminish it. Roosevelt’s court-packing scheme was rightly considered a constitutional affront. How is the Senate Republican gambit any different?