Home > Congress, Legal Policy > Republicans Shouldn’t Overuse the FIlibuster on Judicial Nominees

Republicans Shouldn’t Overuse the FIlibuster on Judicial Nominees

I’m in transit today so this is just a quick post. Back with more tomorrow.

Senate Majority Leader Harry Reid (D-Nv.) will bring up the nomination of Patricia Millet to the D.C. Circuit Court this week. Millet is one of three nominations that Reid plans to bring up for a vote in the next few weeks. The D.C. District Court clearly is a Republican stalwart and has been one of the best ways for conservatives to derail the Obama administration’s legislative agenda as it has jurisdiction over many federal laws (environmental regulations, labor conflicts, etc.). Republicans are eager to keep it that way, but Obama’s three nominees of the court would swing it in the Democrats favor. That’s set up another possible filibuster battle with Reid potentially using the nuclear option to change the Senate rules on judicial nominees (as he threatened to do this past summer before Republicans caved) and force the candidates through. So, should Republicans filibuster?

The answer is found in a Jonathan Bernstein post from this afternoon. Here’s a part of it:

 In my view, large, intense minorities should have an opportunity to block lifetime appointments. As a practical matter, however, they’re only going to be able to keep that opportunity if they use it sparingly. Arbitrary declarations by the minority that appointments to regular vacancies are “court packing,” backed by partisan filibusters, are exactly the kind of thing that will lead to the demise of any minority influence whatsoever.

Republicans are jeopardizing the ability of the minority party to influence federal appointments. The filibuster exists here for a reason. But that reason is not so that a party can block all judicial nominees in order to arbitrarily keep control over it. If Republicans have a serious issue with a candidate, a filibuster is understandable. But blocking three candidates all at once? That’s not.

Republicans should tread even more carefully here, because it’s very unclear if they can take back the Senate next year. If not, that means they have a number of years of dealing with federal nominees as the minority party. If they force Reid to use the nuclear option now, Democrats will easily push through their candidates for the next three years. Republicans will lose their most powerful tool with many years left in the Obama presidency. They may think that Reid will back down and withdraw the nominees, but I find that unlikely. The majority leader showed no willingness to give an inch during the shutdown fight and I expect that to continue here. Republicans are taking a risk if they do choose to filibuster. It’s not a risk that they should take.

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