I say again, this is not a step forward: Move to Rein In Filibusters Likely to Deepen Split in Courts -Simple-Majority Vote on Judicial Confirmations Paves Way for More-Ideological Nominees

From The Wall Street Journal:

The federal judiciary, already ideologically polarized over contentious legal questions, may see the divide grow deeper after the Senate voted Thursday to permit confirmation of lower-court nominees by simple majority vote.

Until now, nominations for the district and appeals courts, like most measures before the Senate, could be blocked by filibuster, a procedural device requiring a supermajority of 60 votes to overcome. With the 100-member Senate usually divided by margins closer than that, the minority party effectively has held veto power over nominations.

 

As a result, that 60-vote threshold has long shaped the kinds of candidates administrations would consider as judicial candidates, a consideration that now evaporates.

 

"The procedural state of affairs in the Senate was kind of baked into the process," said Duke University law professor Christopher Schroeder, who stepped down in December as assistant attorney general for legal policy, the Justice Department official who oversees judicial nominations. "Some people never even came to mind because of the background threat of the filibuster," he said.

 

Kristi Remington, who was a senior official in the same office during the George W. Bush administration, agreed. "The administration would likely have a freer hand when considering nominees because they don't have to worry about whether they have to get 60 votes," she said.

 

Thursday's vote may not be the last word on the filibuster, a tradition beloved in the Senate if rarely celebrated elsewhere. Lurking in the background are nominations for one court Senate Democrats exempted: the Supreme Court. Iowa Sen. Charles Grassley, the Judiciary Committee's ranking Republican, warned that if his party takes control of the Senate and White House, Democrats should forget about preserving the power to filibuster future Supreme Court nominees.

 

"The silver lining is that there will come a day when the roles are reversed," Mr. Grassley said. He said the possibility that lawmakers can draw a sharp line between Supreme Court nominees and those to lower benches was a "fanciful notion."

 

Experts say the minority's power to filibuster Supreme Court nominees is difficult to assert. Only one recent Supreme Court nominee saw his chance end by the filibuster threat, Justice Abe Fortas, whom President Lyndon Johnson sought to elevate to chief justice in 1968.

 

"It's not at all clear that the public would stomach a continuous filibuster of a Supreme Court nominee absent a scandal or negative revelations about the individual," says David Yalof, a political science professor at the University of Connecticut who studies judicial nominations.

 

Both parties have factions sharply focused on judicial nominations, which they view as a crucial battleground for competing constitutional philosophies.

 

Without the filibuster threat, "the activists on both sides are going to be more emboldened to push even harder for people they really want to see on the courts," said Duke's Mr. Schroeder. Previously, the White House would have been able to use the threat of a filibuster to push back, he said.

 

Republicans tend to groom nominees who are tough on criminal defendants, defensive of property interests and critical of decisions that expand rights like same-sex marriage that they believe aren't clearly provided by the Constitution. Democrats, by contrast, have pushed to diversify the bench with more minorities and women, and with candidates sympathetic to abortion rights, affirmative action and environmental regulations, along with the use of litigation to advance consumer and employee interests.

 

It is possible the Senate rule change might not precipitate a free-for-all. The upper chamber still has plenty of procedural rules and parliamentary traditions that give senators and the minority party a significant say.

 

Senators from the state where a judgeship is located can indefinitely hold up a nominee with a so-called blue slip. And typically, the chairman of the Senate Judiciary Committee won't advance a nominee unless both home-state senators concur.

 

Even without filibusters, nominees still need a majority vote for confirmation. President George Washington saw a nominee for chief justice, John Rutledge, rejected 14-10 in 1795. The most recent nominee to suffer such a fate was Robert Bork, who was defeated 58-42 in 1987.

 

Without the filibuster threat, "the activists on both sides are going to be more emboldened to push even harder for people they really want to see on the courts," said Duke's Mr. Schroeder. Previously, the White House would have been able to use the threat of a filibuster to push back, he said.

 

Republicans tend to groom nominees who are tough on criminal defendants, defensive of property interests and critical of decisions that expand rights like same-sex marriage that they believe aren't clearly provided by the Constitution. Democrats, by contrast, have pushed to diversify the bench with more minorities and women, and with candidates sympathetic to abortion rights, affirmative action and environmental regulations, along with the use of litigation to advance consumer and employee interests.

 

It is possible the Senate rule change might not precipitate a free-for-all. The upper chamber still has plenty of procedural rules and parliamentary traditions that give senators and the minority party a significant say.

 

Senators from the state where a judgeship is located can indefinitely hold up a nominee with a so-called blue slip. And typically, the chairman of the Senate Judiciary Committee won't advance a nominee unless both home-state senators concur.

 

Even without filibusters, nominees still need a majority vote for confirmation. President George Washington saw a nominee for chief justice, John Rutledge, rejected 14-10 in 1795. The most recent nominee to suffer such a fate was Robert Bork, who was defeated 58-42 in 1987.