This was a huge week for judicial nominations in the Senate. Nine judges were confirmed, including one at the appeals level. We also got confirmation that Republicans committed a terrible blunder last fall by forcing Senate Majority Leader Harry Reid and the Democrats to invoke the so-called nuclear option, which makes judicial nominations subject to a simple majority vote.
The backlog of judicial nominations isn’t cleared. But there are fewer than 80 vacancies, and the number is dropping. Appellate vacancies are being filled, too. Cloture already has been voted on one, meaning there only will be 13 after the vote scheduled for Monday.
The decrease isn’t dramatic, yet. But majority-imposed reform has mattered anyway. Most obviously, Republicans no longer can block a handful of nominees they oppose most strongly. In addition, it made sense before reform for the majority leader and the Judiciary Committee chairman to move quickest with the least controversial nominees, so Republican opposition could potentially move someone to the back of the line even if opponents didn’t have enough votes to sustain a filibuster. In the post-nuclear era, the Democrats don’t have to worry about having the votes. And since Republicans have insisted on maximizing obstruction on each nomination as retaliation for reform, there’s zero reason to pay any attention to what they think, because their behavior is the same regardless of their level of opposition to any particular nominee. So the order in which nominees are confirmed is far more likely to match Democratic priorities.
It’s possible that Republicans wanted to end confirmation by supermajority, and to put the blame for doing so on Democrats . If that's the case, there is nothing to indicate they made a wise choice. I’m sure that some Republicans have added Reid’s nuclear action to their list of Obama-era grievances, but for most people, the change in Senate procedure is long forgotten. The same would have been true if Republicans had changed the rules in January 2017 if they had a Senate majority and the White House. If Democrats win in 2016, however, this blunder will continue to harm Republicans.
For the most part, Democrats weren't eager to eliminate supermajority confirmations. They didn’t act when Republicans defeated the nominations of Goodwin Liu or Caitlin Halligan. It took blockades of entire positions to push Democrats to make changes. It’s very hard to see how Republicans aren’t significantly worse off now.
To contact the writer of this article: Jonathan Bernstein at Jbernstein62@bloomberg.net.
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