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updated: 8/25/2014 12:30 PM

Republicans redefine obstruction on nominees

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By Jonathan Bernstein
Bloomberg News

A catch to the terrific Twitter-based compiler of all things related to judicial nominations, Mansfield2016, who has a new chart showing that even after the "nuclear option" reform in the Senate last fall, President Barack Obama's federal court nominees still wait longer for confirmation than their predecessors under previous presidents. Indeed, although confirmation waits for Obama nominees have decreased since the Senate rule change allowing confirmation by majority vote, mean and median delays are still longer than for nominees of the three previous presidents.

The chart confirms a familiar pattern of Senate obstruction. Delays spiked when Bill Clinton became president. That new level of obstruction reached a slightly higher peak during the George W. Bush presidency. Then it spiked again dramatically when Obama moved into the White House. By comparison, judicial nominations made by President George H.W. Bush moved fairly quickly -- even though the Senate in those years was controlled by the rival party. Democrats have controlled the Senate all six years under Obama, yet Republicans have gone to new extremes to maximize delays.

I should stress that these are in many cases delays of non-controversial nominees. In my view, it's totally legitimate for the out-party (or, for that matter, any group of Senators) to oppose a judicial nomination. That's how "advise and consent" has worked for more than 200 years. Indeed, I believe that Senate rules requiring super-majority cloture for judicial nominations are an excellent idea, provided the minority observes the Senate norm of using filibusters rarely.

Unfortunately, Republicans simply haven't abided by longstanding Senate norms. After Obama's election, they suddenly insisted that every nomination required 60 votes -- an unprecedented hurdle. They blockaded multiple nominations to the DC Circuit Court. They have, before and after filibuster reform, used Senate rules to delay even nominations that they have intended ultimately to support. Since reform, they have imposed the maximum delay on every single judicial nominee.

Ideally, I'd like to see a compromise that restores the minority's ability to block selected judicial nominees. But right now, the more pressing concern is that if Republicans win a Senate majority in November, they may simply shut down all nominations for two full years. That would be absolutely outrageous. Yet it seems entirely plausible.

Oh, and: Nice catch!


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