The editorial board of the New York Times has finally decided to abandon its support of filibustering nominees it opposes.
It is time to end the ability of a single senator, or group of senators, to block the confirmation process by threatening a filibuster, which can be overcome only by the vote of 60 senators. We agree with President Obama’s call in the State of the Union address for the Senate to change its rules and require votes on judicial and executive nominees within 90 days.
This is a major change of position for us, and we came to it reluctantly. The filibuster has sometimes been the only way to deny life terms on the federal bench to extremist or unqualified judges. But the paralysis has become so dire that we see no other solution.
Like the Independent Counsel law, the filibuster of judicial nominees seemed like a much better idea when it was focused on one’s political opponents — and the NYT enthusiastically supported the filibuster of qualified Republican nominees it deemed too conservative. Now that it has been used to block qualified liberal nominees, the NYT now recognizes the resulting tit-for-tat leaves no one better off. Perhaps members of the Senate will concur.
Many Republican Senators are on record supporting elimination of the filibuster for judicial nominations, but they will not agree to unilateral disarmament. So long as it is on the table it will be used. If the filibuster of judicial nominees is to end, both parties must agree to end it. Those Democrats who complain the loudest about GOP nominees were among those who eagerly used the filibuster against President Bush, even after the “Gang of 14″ deal. Their willingness to consider the filibuster’s end will be necessary to secure a truce.
Now that it has been shown the filibuster can be used against nominees of both parties, perhaps some Senate Democrats will now agree to support a bi-partisan deal to ensure all judicial nominees receive a prompt up-or-down vote within a set time after their nomination. Senator Leahy supported legislation along these lines back when Bill Clinton was President, only to abandon the idea once George W. Bush was in office. Republicans toyed with the idea as well, but are loathe to offer such a gift to a sitting Democratic President. Perhaps both could agree to forego filibusters for whomever occupies 1600 Pennsylvania Avenue next.
It is said little gets done in an election year, particularly when it comes to nominations. But the fact that it is an election year provides a rare window of opportunity. It is still early enough that neither party knows who will win the Presidency this fall, or even who will hold a Senate majority. This allows each side to put aside consideration of partisan advantage and embrace a neutral set of rules to govern future nominations to take effect in January 2013. Such a deal could ensure prompt committee and floor votes of nominees within a set number of days after they are referred to the Senate and their paperwork in complete. Unacceptable nominees could still be opposed, but they would have to be opposed on the merits, and so long as the White House makes nominations with dispatch, there would be no concern about excess judicial vacancies.
The window for a deal along the lines above will not stay open long, as neither side will sign on to something they believe will advantage the other side. The question is whether enough members of the Senate care enough about the judiciary to make it happen. If not, any deal like this will have to wait another three or four years.