February 2011:
Senate Faces Cloture Conundrum

Washington Watch | February 2011
By Bruce Moyer

Before adjourning in late December, the U.S. Senate confirmed 19 judicial nominees to the federal courts, leaving behind an equal number of nominees who had been reported out of the Senate Judiciary Committee and awaited a floor vote. Those confirmations marked the end of a fitful 112th Congress, in which dozens of noncontroversial nominees who had been reported out of the Senate Judiciary Committee with bipartisan support lingered for months without a prompt, up-or-down Senate vote. By the end of the last legislative session, the Senate had approved 62 of President Obama’s judicial nominations, compared with 100 confirmations by the Congress that sat during President George W. Bush’s first term in office.

As the new Congress convened in January, the number of vacancies in the federal courts stood at near-record highs: nearly 100 vacancies— or 12 percent of all judgeships. The Obama White House recently renominated 42 judicial candidates whose confirmations remained pending at the end of the last Congress. These nominees must once again be cleared by the Senate Judiciary Committee before proceeding to a Senate floor vote. Of these nominees, 23 are associated with judgeships termed “judicial emergencies” by the federal judiciary because of their large caseloads and the significantly lengthy time during which the judgeships stood vacant.

Whether judicial vacancies will grow and how fast judicial nominees will be confirmed by the new Senate is far from certain, given the slim three-seat majority the Democrats hold in the Senate, compared to the nine-seat majority they held in the last Congress.

Increasingly over the past two decades, a series of Senate procedural rules and tools—including secret holds and threats to filibuster (read “endlessly debate”)— have been used to block or delay a prompt up-or-down vote on judicial nominees who have been reported out of the Senate Judiciary Committee. Both parties’ use and abuse of these procedural tools has grown over time.  One Senate rule—Rule 22, the cloture rule—permits the minority party a minimum of 30 hours of floor debate when a judicial nomination the party opposes has been brought to the floor. During the last two years, the threat by Republicans to begin extended debate against a judicial candidate deterred the Democratic leadership from bringing many judicial nominees to the floor.

Invocation of cloture, or breaking off debate, is the only way to break a filibuster waged to block or delay Senate action on a judicial nominee. Senate Democrats are considering a significant change in Rule 22: to curtail the use of the filibuster. The potential change would lower the number of votes to cut off a filibuster from the current supermajority of 60 to a bare majority of 51.

Changing the rules may be easier said than done. Under current Senate rules, a rule change can be filibustered, requiring a minimum 60 votes to break the filibuster—a requirement Senate Democrats could certainly not meet. But the Democratic majority appears increasingly ready to pursue a controversial approach, called the “constitutional option,” under which they would declare the requisite number of votes to be only 51, not 60.

With a reduced Democratic majority and a resurgent Republican minority to contend with, Senate Democrats are poised to pursue the constitutional option, aware that they could be inflicting upon themselves a politically damaging wound in 2012 if the Democrats lose control of the Senate and become the minority. Once the cloture rule is revised to require only 51 votes to cut off debate, a Republican Senate majority in 2013 would have little motivation to change the rule and give back power.

Ironically, back in 2005, when a Democratic minority was blocking several Bush nominees to appellate courts, many GOP senators wanted to eliminate judicial filibusters through a majority vote. These senators came under intense criticism from Democrats, who described the move as the “nuclear option.” In the end, a bipartisan group of 14 Republicans and Democrats fashioned a compromise allowing certain nominees to receive a floor vote but the 60-vote threshold for cloture remained.

Which brings us back to the outlook for the more than 40 judicial nominees awaiting Senate confirmation. In his recent year-end report, Chief Justice John Roberts called on the Senate to move urgently to approve more nominees at a faster rate. His comments echoed the approach repeatedly advanced over the past year by the Federal Bar Association. That approach calls for prompt action by the President in naming sufficient numbers of judicial candidates and prompt action by the Senate in permitting an up-or-down vote on judicial nominees who have been cleared by the Senate Judiciary Committee. In this way, courts staffed with judges at the level authorized by the Congress will help to assure the fair, swift administration of justice for all litigants in the federal courts.

Bruce Moyer is government relations counsel for the FBA. © 2011 Bruce Moyer. All rights reserved.

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