Bazelon: The filibuster had to die
I'm glad to hear that Sen. John McCain, R-Ariz., thinks the partial end of the filibuster passed this week is a "devastating" breach of Senate procedure. The Senate rules need to be devastated.
The filibuster is anti-democratic. It gives a minority of representatives from a minority of states a stranglehold over the country and in particular over the president's power of appointment. The filibuster is not in the Constitution, barely existed before 1917, and didn't take on anything like its current form until the middle of the 20th century. Only very recently has it become the monster it is now. It is past time for the filibuster to go, and damn the conventional wisdom about the consequences.
Until now, both parties have held off from killing the filibuster when they've controlled the presidency but not the Senate, because they've been mindful of what they stand to lose when they're on the other side of the power divide. But the Democrats have been so much the losers in this that even Majority Leader Harry Reid, a defender of Senate tradition and gridlock if ever there was one, has admitted the truth born of the brute force of Republican obstructionism: He has no choice, which is why he pushed to end the filibuster for presidential appointees and non-Supreme Court judicial nominees. (The filibuster remains intact for Supreme Court nominations and regular laws.)
Take the D.C. Circuit - the federal court of appeals that is second to the Supreme Court in importance - as just one example of the Republicans' advantage, since it's the cause of the collision that finally sent the Democrats over the edge. Around 2005, after he won re-election, President George W. Bush succeeded in pushing through a slate of D.C. Circuit judges who included hard-core conservatives such as Thomas Griffith, Brett Kavanaugh and Janice Rogers Brown. They have done all kinds of work for the right since then.
Most recently, Brown came through with a ruling against Obamacare's requirement that employers provide health insurance that covers contraception. As Bush lined up his nominees to the courts (not to mention federal agencies), the Democrats kept their promise only to filibuster selectively, based on "extraordinary circumstances." As a result, Bush was able to build a federal judiciary with an overwhelming majority of Republican-appointed judges.
As Charlie Savage wrote in 2008 before Obama became president: "Republican-appointed judges, most of them conservatives, are projected to make up 62 percent of the bench next Inauguration Day, up from 50 percent when Mr. Bush took office. They control 10 of the 13 circuits, while judges appointed by Democrats have a dwindling majority on just one circuit."
That's pretty much how the presidential power of appointment is supposed to work. You win the White House, you control the courts, until the next time around, when it's the other party's turn to pick judges. But the Republicans in the Senate have indefatigably changed the game. They have appointed just one of Obama's five nominees to the D.C. Circuit - Sri Srinivasan, the single golden compromise. Caitlin Halligan withdrew after more than a year of waiting and filibustering. Last summer, Obama announced three nominees at once - Patricia Millett, Robert Wilkins and Cornelia Pillard. All hyper-qualified. None radical. One even worked in the Bush as well as the Clinton Solicitor General's Office and has represented the pro-business behemoth that is the U.S. Chamber of Commerce.
When Obama made his triple-nomination announcement, I figured that the president would go two for three. Or at least one for three. Right? Wrong. The Republicans filibustered all three of Obama's picks. Not because they were extraordinary nominees, but because they were nominees, period. The normal business of filling vacant seats on the D.C. Circuit became, in the heated rhetoric of Republican senators such as Chuck Grassley, Iowa, nefarious "court packing."
Grassley said there was no need for more judges on that court because the workload was down. Never mind that he'd confirmed the Bush judges who at that point brought the total number of non-senior judges on the court to 11 - exactly three more than there are now. The real reason for the Republican united front was simple math: The D.C. Circuit now has four judges appointed by Republicans and four judges appointed by Democrats, plus six senior judges, five of whom are Republican appointees.
Fifteen of the 19 last picks have been made by GOP presidents. The senior judges hear plenty of cases. The appeals courts issue rulings in panels of three. And so, as Moshe Marvit pointed out in Dissent in May, the number that matters most is this: At that point in 2013, almost 80 percent of the D.C. Circuit panels were majority or exclusively Republican appointees.
That's the Republican advantage. It's been working well for them. They saw no reason to give it up. Why not keep pushing the filibuster envelope if no one makes you back off? That's why Reid finally pushed back. The fight for bipartisan normalcy has already been lost. The majority leader merely sounded the death knell. There will be lots of loud lamenting at the wake that follows. Don't be fooled.
If the Republicans were in the Democrats' position, they'd have done the same thing months ago. Now Millett, Wilkins and Pillard can take their seats on the bench. And soon the funeral speeches will end, and the next phase of life in the Senate will begin.
Bazelon is a Slate senior editor and a fellow at Yale Law School. She is the author of "Sticks and Stones."