What Will the GOP’s Senate Takeover Mean for Judicial Nominations?

Published November 10, 2014

The National Law Journal

Now that Republicans have won control of the Senate for President Barack Obama’s remaining two years in office, what does that mean for Obama’s judicial nominations? Let’s look for guidance to recent Senate history — history with which Obama and Senate Democrats should be familiar.

Eight years ago, in the November 2006 elections, Democrats seized control of the Senate by a narrow 51-49 margin. They used their newfound leverage to dramatically increase their influence over President George W. Bush’s judicial nominations at every phase.

Senate Democrats insisted on extensive consultation before nominations were made and refused to give hearings to nominees whom they opposed. They also extracted generous deals from Bush.

For example, as part of a package deal to get one Sixth Circuit nominee confirmed, they forced the White House to withdraw a second nominee and to replace him with failed Clinton nominee Helene White (who also just happened to be Democratic Sen. Carl Levin’s former cousin-in-law). To induce the White House to abandon a contested Fifth Circuit nominee, they promised the speedy confirmation of a consensus replacement, Leslie Southwick, but — spurred by then-Sen. Obama — reneged on their deal and subjected Southwick to a harrowing and vicious filibuster battle. In lots of instances, the White House caved to Democratic senators by selecting district-court nominees with strong partisan ties to those senators.

The Senate in 2007 and 2008 confirmed only 10 appellate nominees — compared to 16 in 2005 and 2006. But, given the White House’s capitulation to Democratic senators on district court nominees, it confirmed 58 district judges — 23 more than were confirmed in the preceding two years.

What’s sauce for the goose is sauce for the gander. Republicans are now in a position to demand the same consultation that Democrats required from the Bush White House eight years ago. They should insist on the same level of extraordinary influence over judicial selection. They can and should block all nominees whom they find objectionable. How many judicial nominees get confirmed depends on how cooperative the White House is.

Aided by Senate Democrats’ abolition of the judicial filibuster a year ago, Obama has had a remarkable number — 105 — of appellate and district nominees confirmed in this Congress. In any lame-duck session before year-end, Republicans should prevent the wholesale confirmation of existing nominations. (In the 2006 lame-duck session, a single nominee was confirmed.)

No Supreme Court vacancies arose in 2007 and 2008, but Senate Democrats made clear they would pull out all stops to block a conservative nominee. Senate Republicans should be ready to return the favor in the event a vacancy arises in 2015 or 2016.

Edward Whelan is president of the Ethics and Public Policy Center and a regular contributor to National Review Online’s blog on judicial nominations.

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