Monday, October 28, 2013

The Coming Senate Apocalypse. Or Not.

The first of the three DC Circuit Court nominees is headed to the Senate floor this week. Where we can expect...well, apparently we have no idea. Sahil Kapur has an overview here, but it's noticeably lacking anything very specific about what the dozen or so Republicans who have been available on exec branch nominations, since July at least, intend to do.

Way  back at the start of August, Kapur had Susan Collins reading to consider each of the nominees "on the basis of his or her merits," which presumably would mean a vote for cloture (and perhaps confirmation, although her vote wouldn't be needed at that stage. He also had McCain as probably on board. As of Thursday, only five Republicans are needed to reach 60 for cloture.

But we really haven't heard much beyond that. It's pretty clear that quite a few Republicans will oppose cloture, but as usual what the radicals do doesn't matter much; what matter is whether McCain, Murkowski, Collins, Alexander, and the rest of that group can produce five votes.

If not? My guess is that a blockade of three seats on the DC Circuit Court would be enough to get Harry Reid to go back to another showdown.

I'm against eliminating filibusters on judicial nominees. 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.

At any rate, what's sort of striking is just how little we know about what will happen this week in the Senate. We could be at the start of an epic confrontation...or it's just as possible that half a dozen or even a full dozen Republicans will vote for cloture. Kapur has been doing a good job by following this important story, and he's a good reporter, but he really doesn't have much, and neither (as far as I've seen) does anyone else. I guess we'll find out soon.


  1. While I think the horse has left the barn on politicization of the judiciary, I do think some type of institutional supermajority is helpful in reducing the politicization. Too much of a supermajority requirement, as now, enables a politicized minority to gum up the works.

    The other thing that would be helpful is term limits with no reappointments for appellate judges and the supremes. This wouldn't solve the politicization problem but it would reduce it be reducing the stakes involved.

    1. I wouldn't mind judicial appointments being term-based, but I'm dead against sticking term limits in there. If the President likes the job they've done, and the Senate supports them, I see no reason why judges should be prevented from serving on the bench.


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