- The Washington Times - Saturday, May 21, 2005

The culmination of the battle between Democrats and Republicans over the future of the federal judiciary, particularly at the appellate-court and Supreme Court levels, is likely to occur in one form or another by Tuesday. On that day the Senate could trigger the so-called nuclear option by using a simple-majority vote to ban filibusters of judicial nominees.

During 2003 and 2004, in an unprecedented, systematic use of the tactic, Democrats wielded the filibuster, which requires 60 votes to stop, to deny up-or-down votes for 10 nominees to the increasingly powerful U.S. Circuit Courts of Appeal. The Republicans’ majority during the 108th Congress, narrow though it was, nonetheless was sufficiently united to guarantee the confirmation of each of those nominees in an up-or-down vote that was denied them.

In the 2004 election, Republicans increased their majority in the current 109th Congress to 55 members. With 60 votes needed to stop a filibuster, however, that is still not enough to overcome a united front by the Democrats, who have pledged to use the filibuster as relentlessly in the 109th as they did in the 108th. There is no doubt the Democrats would use the tactic for a Supreme Court nominee.

A vote to ban the filibuster for judicial nominees has been called the “nuclear option,” because it threatens to blow up whatever comity remains in the Senate and because Democrats promise to retaliate by tying the Senate into parliamentary knots. As a prelude to the imminent showdown, it is worth considering several important trends.

The first relevant trend compares the success presidents (elected and re-elected) have had during the last three decades in securing Senate confirmation of circuit-court nominees in the first two-year Congress during which the Senate was controlled by the president’s party. During the 95th Congress (1977-78), according to the Congressional Research Service (CRS), the Democratic-controlled Senate confirmed 100 percent (12/12) of Jimmy Carter’s circuit-court nominees.

During the 97th Congress (1981-82), the CRS reported that the Republican-controlled Congress confirmed 95 percent (19/20) of Ronald Reagan’s circuit-court nominees. After Mr. Reagan was re-elected, Republicans retained control of the Senate, which, according to the CRS, confirmed 100 percent of Mr. Reagan’s appellate-court nominees during the 99th Congress (1985-86).

Democrats regained control of the Senate in the 1986 elections, and retained control throughout the administration of President George H.W. Bush, who was elected in 1988. Bill Clinton won the presidency in 1992, and Democrats continued to control the Senate during the 103rd Congress (1993-94), during which 86.4 percent (19/22) of Mr. Clinton’s nominees to the circuit courts were confirmed. Interestingly, the nominees who were not confirmed by the 103rd’s Democratic-controlled Senate were later confirmed by the Senate in the 104th Congress, which was controlled by Republicans. Thus, 100 percent of Mr. Clinton’s circuit-court nominations during the 103rd Congress eventually were confirmed. Having gained control in the 1994 elections, the GOP maintained control of the Senate throughout the balance of the Clinton administration.

When George W. Bush entered the White House in 2001, Republicans still controlled the Senate. But a defection from the party by Sen. Jim Jeffords of Vermont in May 2001, the same day that Mr. Bush released his first slate of circuit-court nominees, effectively turned control of the Senate over to the Democrats. Republicans regained control of the Senate in the 2002 election. Thus, for all practical purposes, the Senate in the 108th Congress (2003-04) was the first time Mr. Bush had a GOP-controlled body to consider his circuit-court nominations. According to the CRS, the Republican-controlled Senate in the 108th Congress managed to confirm only 52.9 percent (18/34) of Mr. Bush’s circuit-court nominees.

Thus, the first important trend shows the following appellate-court-nomination success rates achieved by presidents for the first Senate controlled by their party following the president’s election and re-election: Mr. Carter (100 percent); Mr. Reagan (95 percent, 100 percent); Mr. Clinton (100 percent, de facto); G.W. Bush (52.9 percent).

The second trend illustrates why circuit-court nominees became the target of 100 percent of Democratic filibusters during the 108th Congress. Circuit courts of appeal have long been the final decision-makers for the vast majority of federal cases. That is because the Supreme Court declines to hear more than 99 percent of the appeals that come before it. Thus, virtually all of circuit-court decisions not only become the established law throughout their individual circuits, but this has become increasingly so during the past two decades. Why? Because the signed opinions of the Supreme Court have declined from 152 during its 1982-83 term to 107 (1991-92 term) to 71 (2002-03) and 73 (2003-04).

The third trend reveals why the circuit-court filibusters represent an important prelude to the real battle, which will involve one, and probably several, appointments to the Supreme Court. Today the average age of the nine Supreme Court justices is more than 71 years old. That average is now higher than the average age at which justices have retired over the past century. Moreover, the Supreme Court has not had a vacancy since August 1994, when Stephen Breyer joined the court. Indeed, George W. Bush is only the second president to serve at least one full term without appointing a Supreme Court justice. (Mr. Carter was the first.) Also, Mr. Clinton, who appointed two justices during the Democratic-controlled 103rd Congress (1993-94), made no subsequent appointments. As a result, the current, and counting, 10-year-nine-month period without a vacancy closely approaches the record period without a vacancy. That was 11 years, seven months. It ended in September 1823, more than 180 years ago. (And the court had only seven members back then.)

The final trend worth considering involves the results of the last several elections. Democrats haven’t won the White House since 1996. The last time Democrats emerged from national elections with a majority in the Senate was 1992. On election night in all subsequent elections, Republicans achieved majority status in the Senate. Recall that the Democratic majority (June 2001-December 2002) occurred only after Mr. Jeffords left the Republican Party.

In its May 18 editorial, “Nuclear Disarmament,” The Washington Post offered a recommendation to defuse the current battle over filibustering judicial nominees. As an alternative to the “nuclear option,” The Post said the Republicans “could advocate rules that would guarantee swift committee hearings and up-or-down votes starting in 2009, when nobody knows which party will control the Senate or the White House.” Reviewing the election results described above, we could not disagree more.

In this case, we agree with Chris Matthews of “Hardball”: Democrats could solve the dilemma that the “nuclear option” poses for them by winning a few more elections.

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