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


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

Guru Careers: Software Developer / C# Developer

£40-50K: Guru Careers: We are seeking an experienced Software / C# Developer w...

Guru Careers: Software Developer

£35 - 40k + Benefits: Guru Careers: We are seeking a Software Developer (JavaS...

SThree: Trainee Recruitment Consultant / Resourcer

£18000 - £23000 per annum + Commission: SThree: As a Trainee Recruitment Consu...

Ashdown Group: UI Developer - (UI, HTML, CSS, JavaScript, AngularJS)

£25000 - £40000 per annum: Ashdown Group: UI Developer - (UI, JavaScript, HTML...

Day In a Page


In Sickness and in Health: 'I'm really happy to be alive and to see Rebecca'

Rebecca Armstrong
Abuse - and the hell that came afterwards

Abuse - and the hell that follows

James Rhodes on the extraordinary legal battle to publish his memoir
Why we need a 'tranquility map' of England, according to campaigners

It's oh so quiet!

The case for a 'tranquility map' of England
'Timeless fashion': It may be a paradox, but the industry loves it

'Timeless fashion'

It may be a paradox, but the industry loves it
If the West needs a bridge to the 'moderates' inside Isis, maybe we could have done with Osama bin Laden staying alive after all

Could have done with Osama bin Laden staying alive?

Robert Fisk on the Fountainheads of World Evil in 2011 - and 2015
New exhibition celebrates the evolution of swimwear

Evolution of swimwear

From bathing dresses in the twenties to modern bikinis
Sun, sex and an anthropological study: One British academic's summer of hell in Magaluf

Sun, sex and an anthropological study

One academic’s summer of hell in Magaluf
From Shakespeare to Rising Damp... to Vicious

Frances de la Tour's 50-year triumph

'Rising Damp' brought De la Tour such recognition that she could be forgiven if she'd never been able to move on. But at 70, she continues to flourish - and to beguile
'That Whitsun, I was late getting away...'

Ian McMillan on the Whitsun Weddings

This weekend is Whitsun, and while the festival may no longer resonate, Larkin's best-loved poem, lives on - along with the train journey at the heart of it
Kathryn Williams explores the works and influences of Sylvia Plath in a new light

Songs from the bell jar

Kathryn Williams explores the works and influences of Sylvia Plath
How one man's day in high heels showed him that Cannes must change its 'no flats' policy

One man's day in high heels

...showed him that Cannes must change its 'flats' policy
Is a quiet crusade to reform executive pay bearing fruit?

Is a quiet crusade to reform executive pay bearing fruit?

Dominic Rossi of Fidelity says his pressure on business to control rewards is working. But why aren’t other fund managers helping?
The King David Hotel gives precious work to Palestinians - unless peace talks are on

King David Hotel: Palestinians not included

The King David is special to Jerusalem. Nick Kochan checked in and discovered it has some special arrangements, too
More people moving from Australia to New Zealand than in the other direction for first time in 24 years

End of the Aussie brain drain

More people moving from Australia to New Zealand than in the other direction for first time in 24 years
Meditation is touted as a cure for mental instability but can it actually be bad for you?

Can meditation be bad for you?

Researching a mass murder, Dr Miguel Farias discovered that, far from bringing inner peace, meditation can leave devotees in pieces
Eurovision 2015: Australians will be cheering on their first-ever entrant this Saturday

Australia's first-ever Eurovision entrant

Australia, a nation of kitsch-worshippers, has always loved the Eurovision Song Contest. Maggie Alderson says it'll fit in fine