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Analysis: Big Flashpoints in the Judicial Confirmation Wars

Filibusters, blockades and recriminations set stage for SCOTUS skirmishes

The refusal of Senate Republicans to consider Supreme Court nominee Merrick Garland was one of the biggest flashpoints in the judicial confirmation wars. (Tom Williams/CQ Roll Call)
The refusal of Senate Republicans to consider Supreme Court nominee Merrick Garland was one of the biggest flashpoints in the judicial confirmation wars. (Tom Williams/CQ Roll Call)

Like any long war, the one over Supreme Court nominees can be defined by its bloodiest battles.

As Congress braces for a bruising high court confirmation fight, a few recent congressional episodes have provided ammunition for both sides in the contentious process of staffing the judicial branch of government. 

The Supreme Court has been a focal point of political conflict since its Marbury v. Madison decision enabled judicial review of executive and legislative branch actions. 

And certainly, nominees such as Abe Fortas, Robert Bork and Clarence Thomas brought out the knives.

But picks for the federal bench had typically been more bipartisan than not. Justice Ruth Bader Ginsburg, for instance, who is now lionized on the left and a bête noire on the right, sailed through the Senate on a 96-3 vote on Aug. 3, 1993. 

McConnell Wants SCOTUS Nominee’s Merits Considered While Schumer Warns of Partisan Struggles

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Ever since the Supreme Court’s 5-4 Bush v. Gore decision paved the way for George W. Bush to be elected president, the political world has been acutely aware of the importance of any one judge’s vote, and Congress has been marked by flashpoints that set the table for today’s rough confirmation process.

Here are some of the most significant. 

The Miguel Estrada experience

In May 2001, Bush nominated Estrada for a position on the D.C. Circuit Court of Appeals, the second-most influential federal court below the Supreme Court. 

Democrats, who held the majority, did not move Estrada’s nomination. When Republicans won the majority in 2002, they pushed Estrada’s nomination forward, but Democrats filibustered. After repeated failed attempts to cut off debate, Bush withdrew the nomination.

The blocking of Estrada and the threat of other nominees falling to the same fate helped set the stage for Republicans, led by Majority Leader Bill Frist of Tennessee at the time, to threaten the “nuclear option.”

This ominous-sounding move entails changing Senate precedent to remove the filibuster threat of such judicial nominees. A bipartisan group of senators, dubbing themselves the Gang of 14, banded together in 2005 to block any such change and to vote to advance qualified nominees, setting back the nuclear clock on the filibuster, at least for a while. 

‘Not true’ moment

One week after the Supreme Court’s Citizens United v. FEC decision, President Barack Obama used part of his State of the Union address to Congress to voice his displeasure, with the court’s justices seated in front of him. 

“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections,” Obama said at his Jan. 27, 2010, speech. 

Regardless of the merits of the decision or the propriety of Obama criticizing it, a jolt went through the House chamber, punctuated by Justice Samuel A. Alito Jr. mouthing the words, “not true.”

It was another moment, like Bush v. Gore, that hammered home the close margins of court decisions and its increasingly defined liberal and conservative wings. 

Going nuclear, part I

After Obama’s re-election in 2012, the confirmation wars over the judiciary went into overdrive.

Republicans began deploying delay tactics over circuit court and district court nominees. After months of stalemate, Senate Majority Leader Harry Reid on Nov. 21, 2013, followed through on what Frist once threatened, going nuclear. In technical terms, the Senate overturned with a majority vote a ruling of the presiding officer that changed the rules over filibusters of circuit and district court (and executive branch) nominees to allow a simple majority to advance a nominee. 

The result was a streamlining of the confirmation process that allowed Democrats to confirm nominees with only their own party, a wave they rode until relinquishing the majority after the 2014 elections. 

Watch: On Nuclear Option, McConnell in 2017 Sounds a Lot Like Reid in 2013

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The great blockade

After reclaiming the majority in 2015, Senate Republican leaders significantly slowed the confirmation process for Obama’s nominees. 

At the beginning of the 114th Congress in January 2015, there were 40 vacancies at the district and circuit court level, and the ranks begin to grow, as judges retired or otherwise left. Then the big one hit: the death of Justice Antonin Scalia on Feb. 13, 2016.

Senate Majority Leader Mitch McConnell in quick order declared the Senate would not confirm any Obama-nominated replacement. 

Obama nominated D.C. Circuit Court Chief Justice Merrick Garland anyway. McConnell kept to his word. 

At the end of the 114th Congress in January 2017, the Senate had confirmed 20 district and circuit court nominees total for the last two years of Obama’s term. The vacancy list had grown by then too, with 104 vacancies at the district, circuit court and, most significantly, Supreme Court level. 

Going nuclear, part II

After Donald Trump was sworn in, the judicial confirmation process kicked back into gear for the majority Republicans. 

The minority party Democrats were not able to block any of the circuit and district court nominees coming down the pike without Republican support. But the filibuster on Supreme Court nominations was still in effect. Reid’s move in 2013 did not go there. 

McConnell, after Trump nominated Neil Gorsuch to replace Scalia, went there.

On April 6, 2017, after Democrats signaled they would move to block Gorsuch through the filibuster, McConnell set a new precedent by abolishing its use through a move similar to the one Reid deployed in 2013.

No longer would 60 votes be necessary to cut off debate on such a nominee. Only a simple majority vote on all judicial and executive branch nominees would now be necessary to advance them through the calendar.

Correction, 5:40 p.m. | An earlier version of this story misstated the date of Ruth Bader Ginsburg’s confirmation and Barack Obama’s 2010 State of the Union.

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