Barack Obama gets his judges. But at what cost?

Incensed by filibusters against the President’s nominees, the Democrats passed a law banning the practice – a move they may live to regret

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The Independent Online

Hands up, assiduous students of American politics. Until this week had you, honestly, ever heard of the US Court of Appeals for the District of Columbia Circuit? The DC Circuit, as it’s usually referred to, is generally considered the second most important court in the land after the Supreme Court. It has toiled mostly in obscurity – but no longer.

Last week the DC Circuit was the casus belli as the Senate pushed through the most important change in its rules in decades, removing the right of the minority party to filibuster most presidential nominees. Anyone who’s seen Mr Smith Goes to Washington will remember the scene where James Stewart, as the young and idealistic senator Jefferson Smith, holds forth for 24 hours on the Senate floor in a filibuster to prevent a vote on an iniquitous bill.

Alas, they don’t do filibusters like that any more. These days Senators don’t even break sweat, let alone put on a diaper as they gird up to do a Jimmy Stewart. The minority party merely lets it be known it will oppose “cloture” on a confirmation debate on an appointee, and that’s it.

Cloture (or closure) is akin to a guillotine motion at Westminster that limits time for debate on a bill. The difference, however, has been that a guillotine only requires a simple majority. In the US Senate you needed 60 out of the 100 available votes. Neither party has held such a super-majority since Jimmy Carter’s day, and so a tacit agreement operated: except in the most contentious cases, a nominee who had been approved by the relevant Senate committee would receive a straight up-or-down vote on the Senate floor.

Not, though, in this age of hyper-partisanship on Capitol Hill. The filibuster is now a standard weapon of obstruction for the minority party. Democrats have been guilty on occasion, but Republicans have indulged in the practice to an unprecedented degree, blocking as many nominees during the first five years of the Obama presidency as in the previous 60 years.

Several times in the past decade, Senate majority leaders of both stripes have threatened to abolish the filibuster, but each time they stepped back from this “nuclear option” – so-called because of the permanent devastation it would supposedly wreak on the Senate. But on Thursday, after Republicans had again blocked three Obama nominees as judges on the DC Circuit Appeals Court, Harry Reid’s patience ran out.

The Democratic majority leader abruptly announced a vote to change the rules (for which, ironically, only a simple majority is needed). In response, his Republican counterpart Mitch McConnell delivered a speech of a venom remarkable even by the poisonous standards of Congress. But the measure passed. President Obama presumably will now get his people on the DC Circuit. Meanwhile nuclear winter descends on the United States Senate.

Republicans will surely use other procedural tricks to gum up the works. Mr McConnell warned – rightly – that what goes around, comes around. At some point in the future there will be a Republican president with a Republican majority in the Senate, and filibuster-less Democrats will get a taste of their own medicine. For now though, the tyranny of a Democratic majority is at hand, for presidential nominees at least (for ordinary legislation the 60-vote rule remains in force).

In fact, it was inevitable the Senate would go nuclear. As politics here has grown ever more partisan, with the House of Representatives in thrall to the Tea Party, gridlock has taken over Congress. Sooner or later, the battle was bound to spread to the terrain of presidential appointments. You can’t stop a policy, Republicans reasoned; but armed with the filibuster, you can stop anyone being confirmed to run the government agency that implements that policy.

And what is true of new agencies that Republicans detest, to protect consumers and the environment, is doubly true of federal judges and the courts they preside over – which brings me back to the DC Circuit.

America, as we all know, operates by the rule of law, anchored in the majestic document that is the US constitution. But when the party political battle is as fierce as it is now, and in an era when the Supreme Court is at least as important an arbiter of policy as Congress, that statement raises the question of who rules the law – in other words, which party’s appointees occupy important federal judgeships.

The justice system here is “political” to an extent unimaginable in Britain. At state and county level, top judicial officers, district attorneys and sheriffs are mostly elected. At the federal level they are appointed by the president, who will tend to pick candidates of a similar ideological bent.

Indeed, a president’s most lasting legacy may well be in the courts. Once confirmed, a federal judge has the job for life; the current conservative-leaning Supreme Court was created more than two decades ago, when George H W Bush appointed the ultra-conservative Clarence Thomas to replace the great civil rights liberal Thurgood Marshall, back in 1991.

For the moment, the 60-vote super-majority requirement still applies to Supreme Court appointees (and one shudders to think of what might happen if one of today’s five conservative justices were to fall under a bus, and give Obama the chance to tip the majority back to the liberals). But such partisanship has long been damaging the operations of the lower federal courts.

Right now an unprecedented 92 of 851 federal judgeships are vacant, many of them because of Obama nominations held up in the Senate. On the DC Circuit Appeals Court, which rules on a host of major issues from national security to business regulation and the environment, three of the 11 seats are empty. Right now the eight incumbents are split evenly between conservatives and liberals, and Republicans intend to keep it that way. Or at least they intended to – until Harry Reid finally blew his top last week. And you thought Congress was dysfunctional? You ain’t seen nothin’ yet.