Ending Judicial Nomination Fights

“Tit-for-tat” has produced a downward spiral of increased politicization and obstruction of judicial nominations.  Now that Senate Democrats have lost their super-majority in the Senate — and have learned that even a super-majority does not guarantee quick confirmation — perhaps there is an opportunity for Republicans and Democrats to reach an accommodation over judicial nominations.

The key stumbling block to any deal over judicial nominations is the underlying “tit-for-tat” dynamic.  Just as Senate Democrats were reluctant to agree to any deescalation when a Republican was in the White House, Republicans are reluctant now.  Neither side wants to accept a deal for which the opposition is the primary near-term beneficiary.  I see two ways to deal with this problem.  One possibility is to agree to a set of rules that will apply at some future date when there is some uncertainty about which party will be in control due to an intervening election.  If each side is somewhat unsure about whether they or their opposition will benefit from a rule, it should be easier to agree upon a more neutral standard. As the next Presidential election is still more than two years away, such a deal might be premature, but it is the sort of thing I would hope some Senators would consider.  Perhaps in early 2012 Senators could make such a deal to apply beginning in 2013.

A second possibility would be to adopt a more deferential rule today while compensating the opposition party for giving up the same obstructionist tools the other party previously enjoyed.  So, for example, I would propose a deal whereby both parties would agree to apply a more deferential standard (and, ideally,forswear the use of filibusters), and,in return for agreeing to such a deal while there is a Democrat in the White House, President Obama would agree to re-nominate two of President Bush’s stalled nominees, such as Peter Keisler (DC), Loretta Preska (2nd), or Steve Mathews (4th).  There is precedent for this sort of thing.  President Bush renominated stalled Clinton nominees twice — Roger Gregory at the beginning of his term in a failed goodwill gesture (when he also elevated Clinton nominee Barrington Parker) and Helene White at the end of his term as part of a deal to move other nominees.  Also, because there are still several appellate vacancies without pending nominees, including two on the D.C. Circuit, three on the Second, and one on the Fourth, this deal would not require the President withdraw any current nominees.  Agreeing to such a deal now might also head off a fight over the next Supreme Court nominee.

I’m not naive, and I don’t expect any such deal to happen.  But one can always hope.