How Democrats Got Stuck With Such A Bum Deal On Judges

It is now being widely reported that senators have struck a Republican-friendly deal on judicial nominees which would confirm slightly more than half of the non-controversial nominees currently awaiting a vote, while permitting the GOP to block the four nominees they have decided to oppose:

After a months long blockade, Senate Republicans have agreed to let at least 19 of President Barack Obama‘s non-controversial judicial nominees win confirmation in the waning days of the congressional session in exchange for a commitment by Democrats not to seek votes on four others, according to officials familiar with the deal.

Among the four is Goodwin Liu, a law school dean seen as a potential future Supreme Court pick, whose current nomination to the 9th U.S. Circuit Court of Appeals in San Francisco has sparked strong criticism from Republicans.

As part of the arrangement, the Senate has approved 10 judges in the past few days without a single dissenting vote. One of them, Albert Diaz, had been awaiting confirmation to the 4th Circuit Court of Appeals in Richmond, Va., since clearing the Judiciary Committee in January.

The audacity of this deal is truly breathtaking. Republicans will confirm less than all of Obama’s “non-controversial” nominees — the nominees that they have absolutely no objection to whatsoever — and will block anyone they choose, no matter how spurious their objections. And, lest there be any doubts, the right’s objections to nominees such as Liu are flimsy at best. Most of the case against Liu is routed in intentional misrepresentations of his scholarship, some of which accuse him of saying exactly the opposite of what he has actually said.

So how did the America get to this point, where the majority has to bargain and plead to confirm nominees that no one objects to, and where even the slightest minority objection will scuttle a nominee? Unsurprisingly, the answer lies in the Senate’s easily-abused rules.

The Senate rules empowers the minority to force up to 30 hours of wasted floor time for each nominee the majority wishes to confirm. When you multiply this across the hundreds of judges, ambassadors, assistant secretaries and other jobs a new president must fill, it adds up to more time than the Senate is in session for two entire presidential terms:

Because the minority has the power to slow the Senate to a virtual halt, they can use this power to extort even the most unreasonable demands from the minority. In this case, the Senate GOP can simply threaten to grind all confirmations to a near halt unless the majority complies with their arbitrary demand to block Liu and others.

Next month, a one day window opens up when a bare majority of the Senate can change its rules to prevent this kind of hostage-taking from happening again. If the Senate misses this opportunity, another window will not open again for two years.