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November 24, 2013

Is there any obvious sentencing fallout after nuclear option used in Senator filibuster war?

Dr-strangelove-be-optimisticI am intrigued that a group of Senators finally triggered the (foolishly-named) nuclear option in an effort to preclude the persistent use of filibuster practices to delay and/or thwart some presidential nominees.  And though I know it is hard for folks to put aside short-term political realities that prompted these reforms, I am hopeful readers might here talk about whether they think this development could be good or bad (or perhaps just inconsequential) for the long-term development of sentencing jurisprudence.

This CNN article, which is headlined "5 ways life changes in the Senate after nuclear option on filibusters," predicts "more new judges" as one likely consequence, and that seems about right. Others are saying we should expect to see more ideological federal judges, too. Assuming this is all true, do folks think more new and more ideological federal judges will be good or bad for the future of sentencing jurisprudence?

I tend to be an optimist by nature, so I am inclined to assert that more new and more ideological federal judges could lead to more thoughtful skepticism about lots of sentencing jurisprudence. But maybe I am now just looking way too hard for a sentencing silver lining in the mushroom cloud that I suppose now is hanging over the Senate chamber after Harry Reid pushed his nuclear button.

November 24, 2013 at 04:37 PM | Permalink


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Doug --

"I tend to be an optimist by nature, so I am inclined to assert that more new and more ideological federal judges could lead to more thoughtful skepticism about lots of sentencing jurisprudence."

Would you be equally optimistic if the Senate Majority Leader were named Bill Frist and the President were named George Bush?

Posted by: Bill Otis | Nov 24, 2013 5:44:50 PM

I think I would be, especially given that Justices like Scalia and Thomas have been at the forefront of some (though not all) of the newer jurisprudence I like.

Posted by: Doug B. | Nov 24, 2013 6:12:48 PM

More "rat judges--what's not to love?

Posted by: federalist | Nov 24, 2013 6:17:14 PM

Let's be clear: This maneuver was done to stack the court system, primarily in DC, with enough progressive judges so that if the GOP took over the senate as expected next year, the president could create law through executive order and have those orders upheld by the now-overwhelming progressive majority DC Circuit, as well as around the country (particularly in red states). The secondary effect is that, on average, more defendants will either be freed or cases will require higher burdens of proof from prosecutors to proceed in the first place.

Posted by: Eric Knight | Nov 24, 2013 6:26:52 PM

Let's be clear: the Republicans blocked all nominations in the D.C. Circuit. They believe a law in place setting forth a certain number of judicial slots is out of date. They cannot change said law. So, they used the filibuster to block said law from being put into place. See also, filling NLRB slots.

Along with other significant increase of the use of the filibuster to block nominations (including of former Republican senators) and legislation, even a number of traditionalist/conservative leaning Democrats supported changing the system. If the Democrats played hardball in this sort of novel way, the Republicans would have very likely done the same thing. In fact, secretly, some are probably happy they did.

As to more ideological judges, I'm sure bland judges like Priscilla Owens, Janice Rogers Brown, et. al. can use some "ideological" company. Imagine, without the filibuster, a Marshall might be replaced by a Thomas. Seriously, this very well might lead to a few more ideological judges, but many got thru in the old system too. And, as long as the filibuster (and other means) are available to block regular legislation and influence the electoral process, the executive does not simply have carte blanche power here.

Posted by: Joe | Nov 24, 2013 10:47:59 PM

Joe --

The politicizing of judicial nominations started with your buddies who went straight to the gutter by, literally, searching through Robert Bork's trashcan. Bork was a brilliant man by any standard, a Yale Law School professor, a DC Circuit judge who was blocked for a SCOTUS seat mainly by a blowhard plagiarist (Biden) and a drunken killer (Kennedy).

If you want to take pride in it, go right ahead. But Eric Knight has much the better analysis: This was a power grab undertaken to allow Obama to disregard Congress even more than he does now.

Posted by: Bill Otis | Nov 24, 2013 11:03:48 PM


Sorry, I believe the intervening years have demonstrated just how much of a bullet we dodged with Bork's non-confirmation. The man would have been an incredible disaster as a SCOTUS justice.

Posted by: Soronel Haetir | Nov 24, 2013 11:24:52 PM

Soronel --

Your opinion differs from mine on this question. I think Bork would have been a rival to Scalia in terms of his brilliance and his fidelity to law.

You are spot on about one thing, though: There would have been disaster of a certain sort had Bork been confirmed. It would have meant the Obama would have named his successor on the SCOTUS, swinging the Court to the same ideological, pro-criminal extreme we saw during the Warren Court. Instead, we have Justice Kennedy sitting in that seat -- a man who, while no Bork, occasionally drives Obama nuts, e.g., when, after Citizens United, Obama publically scolded the Justices like misbehaving children at the SOTU speech a few years ago.

May Justice Kennedy enjoy many years of good health.

Posted by: Bill Otis | Nov 25, 2013 12:04:01 AM

Regarding nominations to the Supreme Court. We would be better off if we had geographical and law school diversity. Right now we have six from New York or Jersey and all from Harvard and/or Yale. I would prefer a Hugo Black over all of them. And would someone inform Scalia that Constitutional Amendments like the 14th had some Framers who had some original intent.

Posted by: Liberty1st | Nov 25, 2013 1:52:34 AM

A few theories I'd like to posit:

(1) Elections have consequences, and one of those consequences is that the President gets to nominate judges. The Senate shouldn't have to invoke cloture (an extra-constitutional provision in any event) for judicial nominees. That's true regardless of whether GW Bush or Barack Obama is in power.

(2) The GOP dug its own grave on this one by blocking nearly every judicial nomination for the past several months, rather than picking and choosing. Had they been more selective with who they "filibustered" (see 3 below), this would not have happened.

(3) The "filibuster" as currently constituted in the Senate is hopelessly broken. At one time, you actually had to crack a phone book or a Shakespeare compilation to filibuster. Now you just have to invoke cloture. As a practical matter, the Senate rules do not allow anything except budget resolutions to go through without a 3/5 vote. When, exactly, did the majority rule requirement of the Constitution turn into an inalienable 60/40 requirement?

(4) Perhaps this move was motivated in part because Obama intends to fire Sebelius, but he's worried that his next appointment will be blocked under current Senate rules. Blowing up the "filibuster" for executive and judicial appointments will allow a quick replacement.

Posted by: Res ipsa | Nov 25, 2013 9:52:59 AM

Related to (2)--of all the judicial nominees who have been "filibustered" since the 1940s, HALF of them have been under Obama's term.

Again, the GOP dug its own grave on this one.

Posted by: Res ipsa | Nov 25, 2013 9:54:09 AM

Res ipsa --

If the GOP dug it's own grave, it won't take all that long for other bodies to get tossed in there as well.

Posted by: Bill Otis | Nov 25, 2013 10:30:25 AM

And apparently the world came to an end when the cloture requirement was lowered from 2/3 (i.e. 67 votes) to 60% (60 votes) in the 1970s? I agree, the big danger here is that if/when Republicans regain the Senate, they will change filibuster requirements to suit their political needs, but is it of no import that HALF of all nominee flibusters have occured in the last 5 years?

Posted by: anon | Nov 25, 2013 1:18:38 PM


I agree...one day the GOP will be in charge of the Presidency and Senate again, and this will come back to bite the Dems.

Oh well. Do a better job at statewide offices next time.

Given the claptrap we've seen over judicial nominees over the last four presidential terms, can anyone really give me a good reason why Senate rules should allow filibusters--and by that, I mean the ridiculous modern procedure where someone just asks for cloture--for non-SCOTUS judicial nominees?

Posted by: Res ipsa | Nov 25, 2013 1:22:36 PM

Given the number of filibusters in recent years, this outcome was inevitable. We came to the brink of this in 2005 but Democrats stepped back from the brink when a crucial block of Democrats agreed to curb filibusters for all but the most extreme nominees. We crossed it when Republicans opted to filibuster nominees merely to maintain the partisan balance of key circuits -- not based on the views of the nominees -- and refused to curb their filibusters.

Long run, it should not make much of a difference other than allowing nominees to be confirmed quicker. In the past fifty years, there have only been a handful of attempts at filibustering a Supreme Court nominee, most unsuccessful. Robert Bork was defeated on an up-down vote, and Clarence Thomas eked by on an up-down vote regardless of your view of their merits.

Senators have to run state-wide, not in safe districts. That is the best protection against really extreme nominees as Presidents will still have to talk with Senators of their own party to be sure that they can get 50 votes to confirm. While Senators are probably willing to give their own President an up-down vote on a nominee, that is no guarantee that they will vote in favor of a nominee if that nominee is likely to generate significant opposition back home.

Posted by: tmm | Nov 26, 2013 10:24:40 AM

The best outcome for the public is gridlock. Only good ideas will get through.

Posted by: Supremacy Claus | Nov 27, 2013 1:09:26 AM

Joe, surely you understand that Democrats blocked Bush 43 appointments to the DC Circuit via filibuster.

I know it's so hard for you on here--you desperately cling to nonsense you read on the Huffington Post, or in Slate, Salon and the MSM, but when you come in here, some troglodyte who, gasp, believes in capital punishment eats your lunch. It's real easy to disparage sound jurists like Priscilla Owen--the the reality is that her record is a heckuva lot better than judges like Clay, Cole, Daughtrey, Paez, Barkett, Dennis and some of the other joke Clinton appointees. I've challenged you numerous times to defend a particular ruling, and you slink away, only in some other thread to offer up some lib echo-chamber bromide

Posted by: federalist | Nov 28, 2013 10:32:26 AM

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