Will Republicans Resist Blockade Temptation?

There’s nothing wrong with majority-party senators defeating a handful of judicial nominations, or using the confirmation process to influence executive branch policy-making.

Let my nominees through.

Photographer: Dennis Brack/Pool via Bloomberg

What’s going to happen to President Barack Obama’s judicial and executive branch nominations in the next Congress? What should happen?

It’s highly unlikely the Republicans will simply refuse to confirm any further nominations, as some Democrats fear. That would be unprecedented,  outrageous and would rapidly earn the new Senate majority a deserved reputation for extremism. But, yes, there will be a conflict.

Let's divide executive branch nominations into two groups. For the first (which includes some independent agencies such as the National Labor Relations Board) obstruction of nominees can stop the government from functioning, achieving “nullification” of the law without actually repealing it. Blocking these nominations can potentially give Republicans important policy victories without having to pass laws, which can be vetoed (and in any case, bills are difficult to pass; inaction is much easier). “Nullification” of this type is irresponsible, but at this point I expect it: If Republicans were willing to filibuster to achieve the same result when they were in the minority, they almost certainly will be willing to bottle up these nominees  in committee.

For the second kind of executive branch nominees -- which includes everything from the attorney general to ambassadors to, say, an assistant secretary in the Department of Education -- the Republicans have no reason to impose a blockade, and I don’t expect them to. Whether it’s Democrats in 2007-2008, Republicans in 1995-2000 or Democrats in 1987-1992, divided government has never resulted in blockades of executive-branch nominations. Instead, most of the nominees were approved without controversy. Senate majorities and individual senators have used confirmation as a way to achieve influence by extracting commitments from nominees, and that should continue.

And I expect Republicans to follow precedent (established by both parties, but Democrats are probably somewhat more responsible) by attacking and blocking a small number of nominees as unfit for service based on ideology, policy positions or personal failings. In many cases, the attacks will be unfortunate, but we've lived with this since John Tower, Lani Guinier and other cases.

Not all judicial nominations are alike. I expect choices for district judges to continue to be confirmed, mostly without controversy; it is likely that a Republican Senate will keep to a slower pace, and eventually shut down when the 2016 election approaches, but that’s it. Remember, senators have constituents who want a functioning judiciary. And the Obama administration has already shown a willingness to work with individual Republican lawmakers to find acceptable choices. Ideology, partisanship and policy preferences probably matter, even at this level, but without the ability to set court doctrine, the influence of district judges generally doesn’t extend beyond specific cases (as important as they may be).

Appellate courts are different, and that's where the biggest fights will be. It’s almost impossible to compromise on these picks: Obama isn't going to fill the bench with Federalist Society judges, and many Republicans are going to view any nominee whose qualifications fall short of that benchmark as radical leftists (for a potential Supreme Court compromise see here). And blocking them will potentially make a big difference: obstruction could allow Republicans to hold off until there is  a Republican president in 2017. For that, conservatives are likely to resist pressure to allow vacancies to be filled, whether it comes from home-state groups (that want a functioning judiciary) or media (which will correctly consider a blockade at the Circuit Court level outrageous, but won’t elevate it to major-story status).

That leaves a lot of possible outcomes. It’s possible that Republicans will consider the possibility that a Republican president in 2017 could be faced with a Democratic majority in the Senate, and confirm all but a few “extremist” nominees. It’s also possible that Republicans will agree to blockade all appellate judges. And an even messier outcome is also possible: Republicans could revert to the old filibuster rule, requiring 60 votes for cloture, and then bring up judges only to have a minority of the Senate block them.

In all cases, the Republicans have one important advantage: the seats they won Nov. 4 (including possibly one in Louisiana). Most of the party's senators are in solidly Republican states and would only help themselves by opposing “liberal” judges and executive branch choices, but several majority-party senators are in much tougher states and will want to distance themselves from the Ted Cruz wing of the party. Their votes aren’t necessarily needed. Republicans can simply bury nominees in committee (or, if they make it past that hurdle, just strand them on the executive calendar). But when things to come to a vote, it surely helps that they won’t need unanimity.

Some of this is perfectly appropriate: there’s nothing wrong with majority-party senators defeating a handful of Circuit Court judicial nominations, or using the confirmation process to influence (but not dictate) executive branch policymaking. On the other hand, regularly defeating executive branch nominees, or blockading entire courts or agencies, deserves condemnation.

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