Sequester the Filibuster

Last Friday, the White House withdrew Caitlin Halligan’s nomination for the D.C. Circuit (at her request). This sorry incident underscores just how broken our confirmation process has become. Halligan is eminently qualified (and not even that liberal). Vacancies in the Third Branch continue to pile up and confirmations remain stalled.

What’s to be done?

The first step – as always – is to acknowledge that we have a problem. And it’s not just a Republican problem. Democrats played similar (albeit less successful) games during the George W. Bush years.

The institutional problem is that when in control of the Presidency, the dominant party talks a lot about how nominees are entitled to an up-or-down vote. But once they lose the Executive Branch, the same folks (GOP or Dem) change their tune.

The solution to the confirmation stalemate lies in another unpopular Congressional measure: the sequester. No really. I’m serious. Legislative entrenchment is the key to solving the judicial confirmation fiasco.

The Senate should modify Rule 22 (the cloture rule) to mandate that, beginning January, 2018, if more than five appellate court vacancies exist, the Senate will proceed to up-or-down votes until fewer than five vacancies remain. In other words, sequester the filibuster.

The new rule would be politically neutral: we don’t know who would be in charge of the presidency or Senate in six years. And it wouldn’t destroy the cherished filibuster – it would only modify it, allowing Senators to filibuster some nominees who were truly objectionable, as long as they confirmed others. Of course, this won’t solve the current problem, but at least it will chart a politically neutral framework for getting us out of the mess we’ve created.

The sequester might be unwise and unpopular, but it has shown that legislative entrenchment can sometimes ‘work.’ If there’s to be a silver lining to these cuts, let it be an end to our broken judicial confirmation process.

Photo Credit: Wikipedia.

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6 Responses

  1. Urska says:

    Wouldn’t a rule of this sort change the ex ante incentives for nominee selections? A rational President will nominate more polarizing candidates knowing that the rest will get confirmed (assuming that the same party as the President holds the Senate majority). Assuming that the Senate understands this dynamic, is there any hope that the rule you propose will get adopted?

  2. Aaron Zelinsky says:


    Yes. Any change that makes it easier to confirm a nominee would encourage a rational President to choose more polarizing candidates (assuming that the nominee is still less polarizing than his own preferences). Just like a rule change requiring — say — 70 senators to break a filibuster would likely lead to more moderate candidates.

    The issue is whether the Senate privileges moderation in individual nominees or balance over all: you get some of your nominees (when you have the Presidency) and I get some of mine.

    I’ll give you that the odds of getting this through are slim — in fact the Senate getting anything done these days are slim.

  3. mls says:

    I have made a suggestion somewhat along the same lines ( Here is the conclusion:

    “This extended blog post endeavors to show that the nuclear option is correctly, or at least reasonably, seen by the conscientious Senator as illegal under the law of the Senate and/or deeply threatening to the Senate’s institutional prestige, stability and identity. As a consequence, we may anticipate that there are likely to be enough conscientious senators in the majority party (whichever it should be) to block the use of the nuclear option for the foreseeable future.

    Professor Gerard Magliocca, another signatory to the December 12 letter, has suggested that the only people to benefit from this state of affairs “are professors who write about Congress.” Perhaps, then, the academic community might set aside its self-interest to consider whether there are rules reforms which might both pass muster under the various anti-entrenchment theories and could obtain sufficient support to close debate under Senate Rule XXII.

    A possible solution is suggested in footnote 214 to Professor Bruhl’s article on Senate continuity, where he notes “[t]here are various ways one might try to ensure that any decision that changes the Senate rules is done in a more principled and less opportunistically partisan way, such as by delaying the effective date of any change.” If, for example, a proposed change to Senate rules were submitted to the Rules and Administration Committee in the first session of a Congress, and was approved by the committee and by a majority of the Senate by the close of that session, it could be given privileged status in the first session of the next Congress, such that a simple majority could close debate. This would prevent rules changes done for immediate tactical advantage, ensure adequate deliberation, and, because of uncertainty as to which party would be in the majority in the following Congress, discourage measures unduly favoring the majority.

    No doubt there are other worthy proposals that might be considered, and it is uncertain whether any such proposal would be able to pass. But if scholars were to coalesce around a proposal, perhaps the Senate would give it serious consideration. Its worth a shot.”

  4. Brett Bellmore says:

    More of a broken nomination process, broken by the fact that the two party’s idea of what constitutes a barely acceptable nominee have become almost disjoint, due to diverging ideas of what constitutes proper government. “Almost” disjoint: Presidents could find nominees who both parties will have no objection to, but have little incentive to, given that they can use a variety of means to circumvent the need for Senate approval.

    Now that the judiciary is seen as mainly a way to entrench policy beyond the reach of electoral reversal, the parties are about as likely to agree on judicial nominees as they are Presidential nominees. I suppose you can paper this over by changes which permit a bare, momentary majority to confirm a nominee, but this brings a different sort of problem, attempts to bring nominees to a vote without warning or debate before a non-representative quorum, or something short of a quorum disguised by voice ‘votes’.

    I think the better solution, until the notions of good governance converge again, is to close off all means of circumventing Senate approval, so that Presidents have no choice but to target that narrow window of bipartisan approval, instead of picking nominees who will push the window their way.

  5. AndyK says:

    First, I think we can all agree that Cass Sunstein’s “Disagreement Test” piece was disingenuous, because we all know, and we know that Sunstein knows, that distinguishing “out of the mainstream” from simple “disagreement” is a fool’s errand.

    Second, I would agree with Brett were it not for the fact that nominees haven’t changed, but our conception of the court system HAS changed.

    The best empirical research out there shows that filibusters are occurring not because the Senate is going ideological, but because judges are expanding their role so greatly, and this during a time of rapid social change. This is really a problem of American democracy, a structural problem. Not a problem of one procedure, the filibuster, but a real problem of American democracy as such.

    So in Brett’s proposal, we wouldn’t have bipartisan nominees. We would instead just have NO nominees or additional Obama administration illegal appointments.

  6. Joe says:

    “now that … judiciary is seen as mainly a way to entrench policy”

    In the days of Lochner, that is, “then,” was the judiciary different? What was deemed constitutionally barred was somewhat different. But, we heard the same concerns. Probably Teddy Roosevelt et. al., like Brett, implied some past golden age though when pressed (eventually) he might have admitted that there really wasn’t one.

    When did the two parties not greatly disagree on what “good governance” meant? Did Thomas Jefferson agree with the Federalists, people he thought dangerous monarchists, on that sort of thing?

    If nominating people the other party agrees is fully qualified but doesn’t confirm because laws they allowed to pass suddenly must be changed first or who they themselves recommend or who their thought leaders support strongly isn’t enough to get approval, what is? Taking away presidential powers to let some small group of swing opposition senators to have more power doesn’t seem ideal.

    Judges do have more power substantially because government itself in modern times are bigger. Presidents also have more power because of this as does legislators. We need to factor such things into weighing things in the 21st Century.

    I think the top post’s option makes some degree of sense. The minority party has the power to delay things there given the reality of the situation, their agreement necessary to get things done. The net result there might be some agreement akin to the one in days of B41 where the minority party had the right of suggestion of a certain number of judges. This helped get Sotomayor nominated.