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Politicizing Courts Imperils Judiciary

The entrance to the U.S. Supreme Court main entrance with U.S. flag, in Washington D.C. (Alberto Dubini/Dreamstime)

The Republicans are once again tearing at the fabric of the U.S. Senate and further politicizing the federal courts in the process.

In recent years both parties have been weaponizing procedure with each party retaliating for past indignities, with their own provocations.

We have seen cycles of procedural tactics deployed by the majority (whichever party is in control) in an effort to ram their agenda past the opposition. The response of the minority is often obstruction and delay. As Sen. Lamar Alexander, R-Tenn. recently described, "If one party abuses the rules, the other party takes notes and they do the same thing . . . "

The most egregious is the use of a controversial parliamentary ploy popularly known as the "nuclear option." Used by the Democrats in 2013, this was a blatant circumvention of the regular order. This short-sighted expedient allows the majority party to end debate on judicial nominations with a simple majority vote, not the 60 votes required by Rule XXII.

I wrote in The New York Times at the time, "The Senate Republicans, by blatantly and transparently obstructing President Obama’s judicial nominations, have goaded the Democrats into an historic mistake. To reach understandable ends, they have adopted tragically flawed means. By use of the so-called 'nuclear option,' Senate Democrats have now established the principle that a simple majority in the Senate can change any rule at any time. In my judgment, the inevitable consequence of this action will be the elimination of the filibuster for all nominations and eventually for legislative matters."

Only four years later, last April, the Republicans, now in the majority, chose to use the same tactic to wipe away the distinction between the lower courts and the Supreme Court in order to end the Democratic filibuster and confirm Neil Gorsuch.

The new precedent means that presidents, when they have a majority in the Senate, no longer have to take the minority into account when making their judicial nomination decisions.

Democrats in 2014 used the simple majority filibuster to confirm 96 Obama-nominated judges. The Republicans, angered by their lack of input, retaliated by essentially shutting down judicial confirmations when they regained the majority in that year’s elections. In this way, the Senate Republicans kept many seats vacant, denying Obama the opportunity to fill them and assuring that the incoming GOP president, if there were to be one, would make the nominations.

Currently, there are 142 vacancies. With the assistance of the Senate Majority leader, President Trump is rapidly filling the courts with young very conservative judges. He is filling these seats at a faster pace than Presidents Obama, George W. Bush, Clinton, or George H.W. Bush.

The Senate has confirmed 33 Trump-appointed judges, 15 for the powerful circuit courts one step beneath the Supreme Court and 12 more are pending. Of the 15 judges confirmed for the Circuit Court, 7 of them are in their 40’s, the remainder in their 50’s. Their age is significant because they are appointed to the bench for life.

Of the confirmed Trump judges, 91 percent are White. None are African-American or Hispanic. Only 24 percent are female. By contrast, 19 percent of the judges Obama appointed were African-American, 11 percent Hispanic, and 42 percent female.

With the minority frustrated by a starkly reduced role, filibusters occur on nominations, even those which are uncontroversial. These require a cloture vote on each. Once cloture is invoked, under the rules, 30 additional hours of debate are permitted. Closed out of the process, the minority party often requires that all 30 hours be used, slowing the process down.

Recently, the Senate Rules Committee reported a resolution from Sen. James Lankford, R-Okla., would reduce debate after cloture is invoked on District Court judges from 30 hours to 2 hours.

I have supported such a change in the past. The Senate adopted such a provision in 2013 temporarily for the 113th Congress. It was the work of a bipartisan group led by Sens. Carl Levin, D-Mich., and John McCain, R-Ariz., and was adopted, 78 to 16.

However, it is critical to emphasize that this agreement came about in order to deter then-Sen. Majority Leader Harry Reid, D-Nev. from employing the nuclear option in the first place.

Now the resolution will further reduce the role of minority party senators and will likely be extended in the future to Supreme Court nominees. Therefore, it is opposed by Democrats. The Rules Committee action was taken on straight party lines, 10-9. The threat is that the majority will again deploy the infamous nuclear option as a way of overcoming any minority opposition.

Historically filibusters have been rare on judicial nominations.

In the 1960s, President John F. Kennedy appointed 134 judges, all confirmed by unanimous consent with only one exception. President Lyndon Baines Johnson named 186 judges. All but two were confirmed by unanimous consent.

The potential of a filibuster guided presidents toward selecting judges who could command some support in the minority. Now, the process is more blatantly political. President Trump at a rally in Michigan on Saturday declared, "We are appointing judges . . . like never before has anything happened like what we’re doing on great conservative Republican judges. We’re setting records and by the time we’re finished, I think we will have the all-time record. You have no idea how important that is."

Indeed, many are unaware of how important that is — and how dangerously political.

Richard A. Arenberg is a Visiting Lecturer in Political Science and International and Public Affairs at Brown University. He worked for Sens. Paul Tsongas (D-MA), Carl Levin (D-MI), and Majority Leader George Mitchell (D-ME) for 34 years. He served on the Senate Iran-Contra Committee in 1987. Arenberg was co-author of the award-winning "Defending the Filibuster: Soul of the Senate" named “Book of the Year in Political Science” by Foreword Reviews in 2012. A 2nd edition was published in 2014. The U.S. Senate Historical Office published “Richard A. Arenberg: Oral History Interviews” in 2011. He serves on the Board of Directors of Social Security Works and the Social Security Education Fund. He is an affiliate at the Taubman Center for American Politics & Policy. His work has appeared in The New York Times, The Washington Post, the Providence Journal, and The Boston Globe. He is a Contributor at The Hill. Follow him on Twitter @richarenberg.


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