It Might Finally Be Time for the 'Nuclear Option' in the Senate

Abolishing filibusters for judicial nominees could be dangerous, but Republican obstructionists have left few alternatives.
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Associated Press

Watching Sen. Chuck Grassley this week rail against President Obama for "court packing" made me laugh out loud. I laughed for several reasons. One was wondering whether a senior senator and longtime member of the Judiciary Committee really had no idea what court packing is, or was he reaching for new heights of disingenuousness: How could a move by a president simply to fill long-standing existing vacancies on federal courts be termed court packing?

I also laughed because it brought back to me the long controversy over the so-called "nuclear option" to erase filibusters on judicial nominations that gripped the Senate from 2003 to 2005. Back then, Senate Majority Leader Bill Frist, frustrated by Democrats' filibusters and threatened filibusters of Bush Appeals Court nominees Miguel Estrada and Priscilla Owen (and the fear of a filibuster on a potential Supreme Court nominee), threatened to change the Senate's rules in midstream by simple majority, declaring filibusters on judicial nominees as unconstitutional.

Of course, back then, Democrats ardently opposed the nuclear option as Republicans supported it. And no doubt the positions, the arguments, the rhetoric, will be precisely reversed this summer.

Back then, I wrote many columns on the subject, upholding the notion of filibusters on judicial nominations while advocating reform of the filibuster. I also expressed grave doubts about the use of the nuclear option, noting that it would inevitably provoke a strong and sustained response from the minority, using the many tools available to them in the Senate to bollix up the works and bring the place to a halt that go far beyond Rule XXII.

Is anything different? Actually, some things are. To review the history a bit, as the threats to blow up the Senate's rules reached a crescendo in May 2005, a "Gang of 14" senators, seven from each party, reached a deal that enabled several Bush nominees for Appeals Court positions to get up-or-down votes, excluded a couple of others, and declared that all would support cloture of future judicial nominees through the 109th Congress except under "extraordinary circumstances." The deal held throughout that Congress, but when Barack Obama became president, it was clear early on that the deal was at best moribund -- two Republican members of the Gang of 14, John McCain and Lindsey Graham, joined in a filibuster of an Obama pick for the Seventh Circuit, David Hamilton, without any reference to an "extraordinary circumstances" rationale.

Recently, a superbly qualified Obama choice for the D.C. Circuit, Caitlin Halligan, withdrew from consideration after a second attempt to get her confirmed failed, via another Republican filibuster. In the interim, scores of Obama nominees for District and Appeals Court positions have been delayed for months or years after formal nomination, through holds and other obstructionist mechanisms, most of which are related to the threat of a filibuster. A recent report from the Congressional Research Service by Barry McMillion notes that Obama's judicial nominees have been delayed longer than his four most recent predecessors; he is the only president for whom the average and media waiting time from nomination to confirmation was greater than a half year. (I should add that the delays by the president before nominating judges have been ridiculous.)

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Norm Ornstein is a contributing writer for The Atlantic, a contributing editor and columnist for National Journal, and a resident scholar at the American Enterprise Institute for Public Policy Research. More

Ornstein served as codirector of the AEI-Brookings Election Reform Project and participates in AEI's Election Watch series. He also serves as a senior counselor to the Continuity of Government Commission. Ornstein led a working group of scholars and practitioners that helped shape the law, known as McCain-Feingold, that reformed the campaign financing system. He was elected as a fellow of the American Academy of Arts and Sciences in 2004. His many books include The Permanent Campaign and Its Future; The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, with Thomas E. Mann; and, most recently the New York Times bestseller, It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism, also with Tom Mann.

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