The Senate today confirmed the nomination of Susan Carney to the 2nd Circuit Appeals Court by a vote of 71-28.
This follow up on two important confirmations for District Court positions: Edward Milton Chen, confirmed by a 56-42 vote last Tuesday, and before that John McConnell -- confirmed 50-44 after getting cloture on a 63-33 vote.
Put it all together, and we're actually talking about significant progress, hinting that the deal that Harry Reid agreed to in exchange for dropping filibuster reform at the beginning of the year was actually meaningful. First of all, the Senate has now confirmed two district court nominees who did not have 60 votes. I believe those are the first two items of any kind, nominations or legislation, to pass the Senate with fewer than 60 votes since Barack Obama was elected (it was common before that). That's a big deal!
Second, Carney had the votes for cloture, but Reid did not have to obtain cloture for her or for Chen. It's still not clear that marginal Republicans will allow confirmation for more contentious Appeals Court -- or Supreme Court -- nominees, those who can get 51 but not 60 votes. But at least Reid is now willing to move, and Republicans willing to pass without using every means available to slow down, nominees who have significant opposition while still commanding at least 60 votes.
Again, this is a very big deal. We now know that marginal Republicans -- in Carney's case, quite a few of them -- are willing to vote against folks such as DeMint, Lee, Rubio, Johnson, and other hard-liners. We now know that at least a handful of Republicans (including Alexander, Graham, Isakson, and McCain) are willing to (at least sometime) put their votes where their rhetoric is on allowing final votes for judicial nominees. All of that is very good news for the question of whether the Senate, at least as far as this particular task is concerned, is functional.
Or at least closer to functional. Carney was nominated in May 2010 for a position vacant since October 2009, so it's not as if the news is all good, since that's still far too long. There are still over 80 vacancies remaining, and Obama hasn't actually nominated anyone for over 40 of those. But those numbers are finally falling, and perhaps they'll continue to fall. Until this month, the only judges that were moving were those who were utterly uncontroversial; it's excellent news that judges can now be confirmed even if there is significant (but minority) opposition.
I'm still going to say that every single nomination is being filibustered, but I'm no longer absolutely certain that's true, and it's clearly not true that the entire GOP is filibustering every single nominee. Very interesting.