President Obama's judicial nominations are finally being approved, thanks to the filibuster reform Senate Democrats approved last year, allowing for simple majority votes to advance judicial and executive nominations.
It’s true that the pace of judicial confirmation has picked up quite a bit. It’s also true that in several cases -- certainly for the three D.C. Circuit Court nominees who had been blockaded, and probably a handful of controversial selections -- reform meant the difference between confirmation and death by filibuster.
However, we don’t know whether we can attribute the rest of the confirmations to reform, and I think it’s probably unlikely. Yes, Republicans in general have been (and still are) filibustering every judicial nomination. Pre-reform, that meant requiring 60 votes in almost every instance, though it didn't mean that Republicans forced cloture votes every time, and certainly didn't mean that Republicans were unified against cloture or against final confirmation on every nominee. Indeed, an overwhelming majority of judges who reached the Senate floor were confirmed before the abolition of the supermajority requirement for nominations.
So why have more relatively uncontroversial nominees been confirmed after reform? It could be that Republicans were in fact blocking more judges than was reported (then or now), so that once the 60-vote requirement disappeared, Majority Leader Harry Reid and Judiciary Committee Chairman Pat Leahy moved ahead on selections that once would have silently stalled.
It’s far more likely, however, that either Democratic senators or President Barack Obama have simply raised filling judicial vacancies to a higher priority. Indeed: changing the rules was a sign of that high priority.
There are several possibilities to explain why judges became a higher priority, including the limited time remaining in the presidency, the lack of competing demands for the Senate floor in a time of gridlock, and (perhaps) increased agitation from Democratic activists and party-aligned interest groups. Given that I never understood why the Obama administration didn’t put much energy into the nomination and confirmation of judges in its first term, it’s hard for me to know why things are different now.
To contact the writer of this article: Jonathan Bernstein at Jbernstein62@bloomberg.net.
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