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

Share

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.

React Now

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
iJobs Job Widget
iJobs General

Project Coordinator

Competitive: The Green Recruitment Company: The Organisation: The Green Recrui...

Project Manager (HR)- Bristol - Upto £400 p/day

£350 - £400 per annum + competitive: Orgtel: Project Manager (specializing in ...

Embedded Linux Engineer

£40000 - £50000 per annum + competitive: Progressive Recruitment: Embedded Sof...

Senior Hardware Design Engineer - Broadcast

£50000 - £65000 per annum + Benefits: Progressive Recruitment: Working for a m...

Day In a Page

Read Next
The Lada became a symbol of Russia’s failure to keep up with Western economies  

Our sanctions will not cripple Russia. It is doing a lot of the dirty work itself

Hamish McRae
The Israeli ambassador to the US, Ron Dermer, has been dubbed ‘Bibi’s brain’  

Israel's propaganda machine is finally starting to misfire

Patrick Cockburn
Save the tiger: The animals bred for bones on China’s tiger farms

The animals bred for bones on China’s tiger farms

The big cats kept in captivity to perform for paying audiences and then, when dead, their bodies used to fortify wine
A former custard factory, a Midlands bog and a Leeds cemetery all included in top 50 hidden spots in the UK

A former custard factory, a Midlands bog and a Leeds cemetery

Introducing the top 50 hidden spots in Britain
Ebola epidemic: Plagued by fear

Ebola epidemic: Plagued by fear

How a disease that has claimed fewer than 2,000 victims in its history has earned a place in the darkest corner of the public's imagination
Chris Pratt: From 'Parks and Recreation' to 'Guardians of the Galaxy'

From 'Parks and Recreation' to 'Guardians of the Galaxy'

He was homeless in Hawaii when he got his big break. Now the comic actor Chris Pratt is Hollywood's new favourite action star
How live cinema screenings can boost arts audiences

How live cinema screenings can boost arts audiences

Broadcasting plays and exhibitions to cinemas is a sure-fire box office smash
Shipping container hotels: Pop-up hotels filling a niche

Pop-up hotels filling a niche

Spending the night in a shipping container doesn't sound appealing, but these mobile crash pads are popping up at the summer's biggest events
Native American headdresses are not fashion accessories

Feather dust-up

A Canadian festival has banned Native American headwear. Haven't we been here before?
Boris Johnson's war on diesel

Boris Johnson's war on diesel

11m cars here run on diesel. It's seen as a greener alternative to unleaded petrol. So why is London's mayor on a crusade against the black pump?
5 best waterproof cameras

Splash and flash: 5 best waterproof cameras

Don't let water stop you taking snaps with one of these machines that will take you from the sand to meters deep
Louis van Gaal interview: Manchester United manager discusses tactics and rebuilding after the David Moyes era

Louis van Gaal interview

Manchester United manager discusses tactics and rebuilding after the David Moyes era
Will Gore: The goodwill shown by fans towards Alastair Cook will evaporate rapidly if India win the series

Will Gore: Outside Edge

The goodwill shown by fans towards Alastair Cook will evaporate rapidly if India win the series
The children were playing in the street with toy guns. The air strikes were tragically real

The air strikes were tragically real

The children were playing in the street with toy guns
Boozy, ignorant, intolerant, but very polite – The British, as others see us

Britain as others see us

Boozy, ignorant, intolerant, but very polite
How did our legends really begin?

How did our legends really begin?

Applying the theory of evolution to the world's many mythologies
Watch out: Lambrusco is back on the menu

Lambrusco is back on the menu

Naff Seventies corner-shop staple is this year's Aperol Spritz