Federal Courts and Nominations

When Going Nuclear Makes Sense

The Senate’s confirmation of Pamela Harris to the United States Court of Appeals for the Fourth Circuit today is yet another indication of how vital and necessary the invocation of the “nuclear option” was for the maintenance of a capable and efficient federal judiciary.  The Senate rules change in November 2013 that allowed a simple majority to end filibusters on most judicial nominees has enabled the President to nominate and secure the confirmation of the next generation of great legal minds to the federal bench.  And since the rules change, these things have happened.  The effect of the nuclear option is apparent in both the quality and the quantity of confirmations since last November.


Before November, President Obama too often found himself hamstrung by partisan gamesmanship as filibusters by conservative Senators prevented him from performing a basic function of the presidency.  His nominations of brilliant and overwhelmingly qualified individuals such as Caitlin Halligan (a former Solicitor General for the state of New York) and Goodwin Liu (now a California Supreme Court Justice) were frustrated by filibusters that ultimately succeeded in keeping some of the brightest legal minds in the country off the federal bench.  It was the filibustering of Patricia Millett that ultimately triggered the nuclear option.  Millett’s nomination was blocked even though she had extraordinarily strong support from both the Right and the Left and was widely recognized as one of the best Supreme Court advocates in the country.  


After Harry Reid invoked the nuclear option, Millett, as well as Cornelia “Nina” Pillard and Robert Wilkins, were confirmed to the D.C. Circuit Court of Appeals, bringing much-needed balance and sterling credentials to what is often called the second highest court in the land.  Now, Pamela Harris is just the latest name to add to a growing list of eminently qualified and brilliant new federal judges whose confirmations were made possible by the rules change.  I may be biased, since Pam served on Constitutional Accountability Center’s board of directors for two years, but her qualifications to serve on the Fourth Circuit are unparalleled.


The list of overwhelmingly qualified and brilliant new federal judges who owe their confirmation to the nuclear option doesn’t end there.  David Barron, a former Assistant Attorney General in the Justice Department, is a quintessential example, now serving on the First Circuit Court of Appeals.  Michelle Friedland is another, and, as the youngest serving federal appellate court judge in the nation, will contribute many years of distinguished service on the bench.  This isn’t to say that the President wasn’t nominating qualified individuals before the nuclear option, just that the reigning obstructionism in the Senate put up unnecessary roadblocks and made the fate of those nominees much less certain.


The exercise of the nuclear option was not about ensuring judicial support for a partisan agenda (although President Obama’s judges are unlikely to join momentously wrong rulings issued by conservative judges, such as the D.C. Circuit’s 2-1 ruling in Halbig v. Burwell last week, striking down some of the tax credits that make the Affordable Care Act work).  Indeed, the nuclear option will benefit conservatives the next time there is a Republican president.  It was about overcoming the polemically obstructionist strategy of Senate conservatives and allowing the President to welcome the next generation of great legal minds to the federal bench.  And it’s not just a matter of the quality of these new judges, it is also a matter of quantity.  The nuclear option has equipped the President and the Senate majority with the ability to begin to ameliorate the vacancy crisis that plagues federal district courts in many parts of the country and that jeopardizes Americans’ access to justice.


The Senate has confirmed 61 federal judges since the rules change on November 21.  The 54 confirmations at the halfway point of this year outnumber the total number of confirmations (43) secured in all of 2013.  The second quarter of 2014 (April-June) saw the most confirmations to the district courts (and to the federal bench in general) of any quarter during the Obama Administration. This is especially impressive in an election year, when opposition for opposition’s sake is all too common.  So far, 2014 is by far the most successful election year in terms of judicial confirmations in the Obama presidency. 


The invocation of the nuclear option last November addressed a real problem with the functioning of the Senate, paved the way for a new generation of insightful legal minds to join the ranks of the federal judiciary, and has allowed the President to address the nation’s judicial vacancy crisis by accelerating the pace of confirmations.  We are all better off for it.


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