The Free Press, Mankato, MN

December 28, 2013

GOP arguments on filibuster ignore history

The Mankato Free Press

---- — I’m responding to Bob Jentges (Free Press, Dec. 8) and Patrick Dempsey (Free Press, Dec.14). Both decried Senate Democrats’ recent abolition of filibusters by the Senate’s minority party, for presidential nominations for executive-branch posts and judicial vacancies on federal district and appeals courts. (Filibusters for Supreme Court nominations, and on legislation, are still allowed).

I concur with Dempsey’s well-written brief history of the filibuster — but not with his conclusion, that the move represents a “Democrat[ic] power grab.” Likewise, I disagree with Jentges’ conclusion that Senate Democrats’ action represents “an example of hypocrisy and extreme partisanship.” These claims are at best questionable, considering historical and contemporary realities.

The Democratic move followed Republican filibusters against President Obama’s nominees for three vacancies on the 11-seat D.C. Circuit Court of Appeals. Justifying their filibusters, Republicans argued the D.C. Circuit is underworked — very questionable at best —, and that Obama’s filling these vacancies represents “court packing” — flat-out false.

The D.C. Circuit is the most visible and important federal appeals court. Positions on it are often launching pads for future Supreme Court nominees.(1) Furthermore, cases heard by the D.C. Circuit are not comparable with those heard by other appeals courts. D.C. Circuit cases are less often routine, and more complex and technical, often involving challenges to rules issued by federal administrative agencies. 

The D.C. Circuit hears cases involving over 130 different federal laws, and many of these cases are “sprawling and esoteric.”(2) Republicans’ claim that the D.C. Circuit is underworked relies only on data on numbers of cases — a seriously flawed metric, according to judicial experts. (3)

Next, Republicans contend Obama is trying to “pack” the D.C. Circuit. This claim is suggestive of Franklin D. Roosevelt’s 1937 “court packing” proposal, which, importantly, failed in Congress and was widely regarded as overreaching. 

The “packing claim is ridiculous, and was rated “false,” according to Roosevelt’s plan entailed adding Supreme Court justices, up to a possible 15. Obama’s three nominees are for existing vacancies. As judicial scholar Russell Wheeler notes, “Appointing judges to existing vacancies is not court-packing. It’s simply the way the system works.” (5).

Following the dubious claim the D.C. Circuit is underworked, Sen. Charles Grassley, R-Ia., offered legislation, backed by other Senate Republicans, that would permanently shrink it to 8 judges, effective immediately (conveniently – to ensure Obama cannot make any nominations). (6) 

After piously supporting then-president Bush’s filling vacancies on the exact same court, Senate Republicans now zealously crusade to prevent Obama from filling even one vacancy. Sen. Patrick Leahy, D-Vt., nailed it in saying, “You know this has nothing to do with caseload. It has everything to do (with) who is president.”

Historically, Democrats do bear some responsibility for escalating conflict over the direction of the federal judiciary. In 2005, Democrats, then the Senate minority, initially blocked some Bush appointees to the D.C. Circuit, and Republicans threatened to end filibusters by the Senate minority party on judicial nominations — exactly the Democrats’ November 2013 action.

Here again, Republicans rely on false equivalencies. First, the 2005 crisis was defused by the bipartisan “Gang of 14” compromise, allowing confirmation of most Bush appointees, but allowing the judicial filibuster under (undefined) “extraordinary circumstances.” (7) 

In 2013, there was no compromise. Second, in 2005, Democratic blocking of Bush’s D.C. Circuit nominees was selective and for a stated reason: some nominees, they argued, were too far right. By contrast, in 2013, Republican blocking of Obama’s D.C. Circuit nominees was absolute and categorical, and Republicans never offered any ideological objections to individual nominees.

So: Democrats sought to selectively block only some of Bush’s D.C. Circuit nominees, and at least stating a reason particular to individual nominees. Republicans blocked all of Obama’s nominees, categorically, across the board, giving no reason whatsoever. Any thinking person can divine Senate Republicans’ position today: This president will get no nominations through for the D.C. Circuit, period, end of story. 

This is an unprecedented and outrageous abuse of the Senate filibuster. It amounts to a crusade to strip a (twice) duly elected president of a power that all preceding presidents over 200-plus years of history have exercised: the ability to fill existing vacancies on federal appeals courts.

The Republicans’ 2013 obstruction is, therefore, completely out of line. Reluctantly, I conclude that Senate Democrats were justified in ending the judicial filibuster to stop this abuse. Republicans’ case rests on the dubious “underworked” claim, the flatly false “court packing” claim, and false equivalencies in comparing appeals-court caseloads and Democrats’ 2005 actions with Republicans’ 2013 actions.

Fred Slocum is an associate professor of political science at Minnesota State University, where he teaches courses on U.S. government, the presidency, Congress, political parties, and American legal philosophy.

1 Four of the nine current Supreme Court justices previously held seats on the D.C. Circuit Court of Appeals (Justices Scalia, Thomas, Ginsburg and Chief Justice Roberts). 


3 (see quotes by Russell Wheeler, Eric Fraser and Tracey George); see also