Nearly Two Months After The ‘Nuclear Option,’ Senate Will Finally Confirm Last Filibustered Judge


Last November, Senate Democrats invoked the so-called “nuclear option,” a procedure that allowed them to eliminate the minority’s power to block nominees from being confirmed unless those nominees received a supermajority of 60 votes. As of November, all presidential nominees except for new Supreme Court justices can be confirmed by a simple majority vote.


The impetus for this move was the Senate GOP’s decision to block literally anyone President Obama nominated to the United States Court of Appeals for the District of Columbia Circuit — the second most powerful court in the country. Prior to last month, Republicans controlled this court, and they’d wielded that control to halt major environment regulations, to restrict access to birth control, and to hold that employers have a constitutional right to keep workers ignorant of their rights. Now that nominees can be confirmed by a majority vote, however, two of the three D.C. Circuit nominees Senate Republicans were filibustering have been confirmed to this court, giving the court’s Democratic nominees the ability to overrule decisions that stray too far from the law.

Nevertheless, the third nominee — Judge Roger Wilkins — is not scheduled to be confirmed until Monday, nearly two months after Senate Democrats invoked the nuclear option.

The reason why it will take so long to confirm Wilkins is that, why the supermajority is dead at least in the context of nearly all confirmation votes, the minority still has plenty of tools at its disposal to force delay for its own sake. One of these tools is that the minority can force up to 30 hours of floor time to be wasted for each federal appellate judge confirmed. Moreover, while district judges currently only require 2 hours to confirm, and sub-cabinet officials only require 8 hours to confirm, this is due to a temporary rules change that will expire in a year. When this rule expires, all nominees will once against require 30 hours to confirm.

The result of these pointless hours of delay is that Senate Republicans can — and did — hold up many confirmation votes for weeks simply by requiring the Senate to waste the maximal amount of time before any nominee is confirmed. The vote to break the Senate GOP’s filibuster of Judge Wilkins actually happened on Thursday, but he will not be confirmed until Monday due to the 30 hours of delay. Until the Senate abolishes the minority’s ability to waste time in this way before a nominee can be confirmed, we can expect to see even more of these tactics in the future.