The Filibuster's Demise Is Great News for Judicial Confirmation Hearings

Knowing obstruction was an option, senators have long had pillow fights with nominees. That's almost certainly going to change.
Now-Supreme Court Justice Elena Kagan's Senate Judiciary Committee hearing was a love-in. (Jason Reed/Reuters) 

The phrase "nuclear option" always has been terribly misleading as a way of describing the method Democrats finally chose to end the abuse of the filibuster in the U.S. Senate. There is nothing "nuclear" about permitting a majority of elected officials to do what the Constitution requires and demands that they do: vote on which judges ought to sit on the nation's benches. What was "nuclear" was the way in which Republican senators these past few months years have refused to vote up or down on judicial nominees who were patently smart, able, dedicated to public service, and "mainstream."

By the time you read this, a million words will have been read or spoken about what the new limits on the filibuster mean to Washington politics and to the American people. You will have heard all the screeds and justifications from the politicians and the advocates and the lawyers and the lobbyists. Let me just briefly add this note: The coming era means that Senate Judiciary Committee hearings for federal judges now will be consistently more intense, partisan, and revelatory than they have ever been before.

This, folks, is rockin' good news.

The relentless use of the filibuster shifted the fight over judicial nominees from the Judiciary Committee to the floor of the Senate. But there wasn't much meaningful debate of the merits of the nominees' qualifications in either place, especially recently. President Obama gets some credit for the lack of substantive criticism; the three nominees whose Senate rejections forced the rule change are each exceptionally qualified. But now the fight over these public servants shifts back to the Judiciary Committee—where it belongs and where there now exists a great deal of built-in political incentive to hold hearings where people actually have conversations of great weight and substance.

Knowing they can no longer hold up nominees for no good reason on the Senate floor, Judiciary Committee Republicans instead will be forced to seek substantive ways to justify a decision to vote "no" on Obama nominees. They will ask tougher questions of the nominees and require those nominees to provide more candid and complete answers. They will complain if and when candidates fail to do so. Republicans, in other words, will seek to elicit information about these candidates during hearings that can be used against those candidates when their nominations come up for a vote. And when Democrats become the minority again in the Senate they, too, will employ these tactics.

This is not remotely a bad thing. Judicial nominees should be evaluated more in public on the merits of their work and the arcs of their careers. They should have to reveal more about their judicial ideologies, to the extent they have any. As now-Supreme Court Justice Elena Kagan famously said in 2010 during her love-in with the Judiciary Committee, judicial nominations have become "vapid and hollow" affairs in which the senators (of both parties) prattle on with prepared speeches while the candidates try to offer as little insight as possible about their judicial philosophies.

Just think back to the past four confirmation hearings for the Supreme Court. Remember when now-Chief Justice John Roberts talked in his confirmation hearing about how judges have to be neutral umpires—to wide applause? Turns out he calls strikes for one team and balls for the other, right? Remember how few substantive questions were posed to now-Justice Samuel Alito, then a little-known federal appeals-court judge? Was he forced to betray even a whiff of the corporate-friendly ideologue he has been on the Court? Of course not. Hearings for lower court judges have been even less revealing. 

So the next judicial appointees to come before the Judiciary Committee are far more likely to face far more hostile questions than their immediate predecessors did. They had better be ready—for their own sake and for the sake of the administration that nominates them. In a perfect world, this would mean that the president, and future presidents, would work harder to nominate only the most qualified candidates and that the confirmation hearings become more substantive affairs.

More candor aimed at the American people? More insight into life-tenured judges? Political battles over the merits of people's careers rather than over the size of our courts? If that's the end result here, there is reason to applaud today's historic change, no matter what side of the aisle you call home.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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