Howard J. Bashman's appellate columns, etc.

Anti–Filibuster Yet Anti–"Nuclear Option"

By Howard J. Bashman
Monday, April 11, 2005
So long as a nominee to a U.S. Court of Appeals possesses the necessary objective qualifications (an inquiry whose resolution does not depend on whether the nominee shares my views on controversial issues of the day) and is willing to apply the law even when it conflicts with his or her own personal preferences, the nominee deserves to receive an up–or–down vote on the merits in the U.S. Senate.

Thus, I do not support the filibusters that the Senate's Democratic leadership has initiated against nearly a dozen of President Bush's current appellate court nominees, nor did I support the procedural maneuvers that Republicans used during Bill Clinton's presidency to avoid floor votes on appellate court nominees whom conservative Republican Senators opposed.

While my opposition to judicial filibusters is staunch and abiding, I believe that the Republican leadership in the U.S. Senate is on the verge of making a serious mistake by invoking the so–called "nuclear option" to change Senate rules to preclude filibusters from being used to block judicial nominees.

In a nutshell, if the Senate's Republican leadership can muster fifty votes to eliminate judicial filibusters -- and whether fifty votes can be obtained for that result remains seriously in doubt -- the Senate's Republican leadership with the tie–breaking vote of Vice President Dick Cheney could successfully employ a procedural maneuver that would eliminate judicial filibusters and entitle every judicial nominee reported out of committee to an up–or–down vote on the Senate floor.

Why would I or anyone else who opposes the filibustering of judicial nominees also oppose the "nuclear option," which would eliminate the ability to filibuster judicial nominees? As the famous saying goes, "A page of history is worth a volume of logic."

To begin with, both Democrats and Republicans in the U.S. Senate have, at various times, engaged in procedural maneuvers that have prevented otherwise objectively qualified U.S. Court of Appeals nominees from receiving up–or–down votes, thereby preventing the confirmation of nominees who would have received sufficient votes to be confirmed. While partisans can endlessly debate which political party is responsible for obstructing the confirmation of more of the other party's appellate court nominees, it is unquestionably true that both political parties are guilty to some not insignificant extent.

Nevertheless, even during the presidency of George W. Bush, the White House has obtained Senate confirmation of many very conservative federal appellate court nominees. Certain of those nominees have been confirmed to lifetime positions on U.S. Courts of Appeals in the absence of a filibuster–proof majority vote on the Senate floor. For example, both Sixth Circuit Judge Jeffrey S. Sutton and Tenth Circuit Judge Timothy M. Tymkovich were confirmed despite having received 41 "no" votes in the U.S. Senate, while Fourth Circuit Judge Dennis W. Shedd was confirmed notwithstanding 44 "no" votes. And many other of President Bush's very conservative federal appellate court nominees attained confirmation through normal political channels of consultation and compromise.

Of course, the fact that some very conservative federal appellate court nominees have been confirmed is surely of little solace to the dozen or so nominees who have been the subject of Democratic filibusters, often mounted at the behest of liberal special interest groups. Yet if those nominees cannot be confirmed under current Senate procedures and rules, the White House remains free to replace those nominees with other equally conservative nominees who, for political or other reasons, have a better chance of avoiding the prospect of a filibuster.

Third Circuit Judge D. Brooks Smith, Seventh Circuit Judge Diane S. Sykes, Ninth Circuit Judge Jay S. Bybee, and Tenth Circuit Judge Michael W. McConnell all attained confirmation with active Democratic support, demonstrating that unabashedly conservative judicial nominees are not necessarily doomed to the legislative limbo of the filibuster. Even if every one of the currently filibustered federal appellate court nominees is the most qualified person available to fill the vacancies in question, surely there are other potential nominees nearly as qualified who would not be as objectionable to the Senate’s Democratic leadership.

Next, it is important not to lose sight of the fact that the current U.S. Senate has 55 Republican members, a healthy majority that, when combined with a handful of moderate to conservative Democrats, puts Republicans just a couple of votes away from being able to invoke cloture, thereby defeating any attempts at filibustering individual judicial nominees. Of course, the problem which currently arises is that the sixty votes needed to invoke cloture remains just so slightly out of reach. But many Democratic seats in the U.S. Senate are up for grabs in 2006, and it is certainly possible that the Republican party could emerge from the 2006 midterm elections with an increased majority in the U.S. Senate that, together with support from moderate and conservative Democratic Senators, will supply the sixty votes necessary to invoke cloture and thereby overcome any threatened judicial filibusters.

Finally, Republicans in the U.S. Senate who now favor the "nuclear option" should not overlook that the current combination of a Republican President and a Republican majority in the U.S. Senate is not guaranteed to last forever. It is impossible to predict who will be elected president in 2008 and what the composition of the U.S. Senate will be then. If a Democratic President is elected, Republican moderates in the U.S. Senate may give Democratic Senators enough votes to provide a bare majority in favor of confirming controversial Democratic judicial nominees. And if the "nuclear option" is invoked now, conservative Republican Senators would be powerless to prevent the confirmation of judges whom they oppose as too liberal.

As I have written in this space previously, I believe the current obsession over the ideological preferences of U.S. Court of Appeals nominees is overblown, because judges serving on intermediate federal appellate courts do not possess unbridled power to enact into law their personal and political preferences. And should any try to do so, U.S. Supreme Court review is available to correct the result.

What will truly be fascinating to see is the battle royale that accompanies the next vacancy or vacancies on the U.S. Supreme Court. On the Supreme Court, a Justice's personal and political preferences can significantly influence decision–making in a manner that is not subject to correction or review in any higher court. But filibusters of nominees able to attain confirmation are unheard of at the U.S. Supreme Court level, as Justice Clarence Thomas's narrow confirmation margin confirms. I expect that the Senate's Democratic leadership will risk severe political backlash if Democrats filibuster a U.S. Supreme Court nominee who has support from both the general public and a majority in the U.S. Senate. On the other hand, if the White House chooses a particularly controversial nominee, the confirmation battle is sure to be unlike anything we have ever seen.

The use of filibusters to block the confirmation of federal appellate court nominees is a very bad thing. But I am confident that enough Republican Senators will realize that even worse, in the long run, is losing the ability to block the other party's most objectionable judicial nominees. For these reasons, if this Republican were serving in the U.S. Senate, I would not vote in favor of the "nuclear option."

This article is reprinted with permission from the April 11, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.