Did someone say filibuster?

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A Non-Nuclear Option for Supreme Court Nominations

Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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Almost a month into the 114th Senate, the new Republican majority still doesn't know what to do about filibusters of judicial nominations. The latest? An idea floated recently to eliminate filibusters on Supreme Court nominations (or, technically, to change cloture to a simple majority) seems to be DOA

The background on this is that when Democrats went “nuclear” in fall 2013, reducing the votes necessary for ending filibusters on judicial and executive-branch nominations from 60 to a simple Senate majority, they omitted Supreme Court confirmations. 

Democrats weren't objecting to ideology-based filibusters against specific nominees, but to the across-the-board blockades preventing the president from filling any judicial vacancy at all. The filibuster that pushed Democrats over the edge was over three seats on the District of Columbia Circuit Appeals Court.

Even if the Republican position was indefensible, it isn't off base to require some kind of supermajority to approve judicial candidates for the Supreme Court and for other seats on the federal bench.

Federal judges hold lifetime appointments. It's a little bit weird that Ronald Reagan, George H.W. Bush and Bill Clinton all have considerable influence today because of their choices still serving not only on the Supreme Court, but on the lower courts as well. It's consistent with the spirit of the Constitution to establish rules that reward mainstream selections. It shouldn't be easy for a small, temporary majority to set its preferences in stone for a generation. 

I’ve been floating a compromise that would prevent blockades of nominations by the minority party, but would also give some check against easy confirmations: requiring a number of Senate votes equal to the number of majority-party senators to block filibusters on judicial nominations. So with 54 Republicans right now, cloture would require 54 votes.

Now, of course, when the government is divided (as it is now, with a Democratic president and a Republican majority in the Senate), the Senate majority party can defeat any nomination without even needing floor votes; it can just kill nominations in committee, or refuse to bring them up for a vote. But in periods of unified government, this compromise would allow the president’s choice to be confirmed only if the president’s party was 100 percent united on the nominee – or, if the majority party wasn't unified, it would need to find some votes from the other party.

This would still allow a unified party (controlling the presidency and a Senate majority) to confirm anyone it wanted. Presumably, though, anyone supported by the president and the party’s entire Senate caucus, or an equivalent number of votes drawn from both parties, would have to be someone in the mainstream. Otherwise, party moderates (and there are always moderates) might defect, and no crossover votes would make up for it. If support for a prospective nominee is going to be a tough vote for some in the party, that would encourage the president to make a less controversial or factional choice. 

This kind of supermajority system -- for all federal judges, including Supreme Court justices -- gives at least some protection to minority points of view without allowing partisan blockades such as the ones Republicans put up in the last Congress. Senators who are looking for a compromise should consider the idea.

  1. I'd also shift the burden from majority to minority; instead of needing 54 votes to invoke cloture and therefore defeat a filibuster, I'd require 47 votes to sustain a filibuster. Filibusters are justified in part because intense minority opinions are important; therefore, absent senators should count against the minority, not the majority. 

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor on this story:
Katy Roberts at kroberts29@bloomberg.net