The post-mortems today, after Harry Reid yesterday dropped the “nuclear option” on the Senate floor, then headed out of town, contain few surprises. As expected, the editorialists at the New York Times, headlining their thoughts with “Democracy Returns to the Senate,” called the 52-48 vote to end filibusters for appellate court nominees “long overdue.” The Times’ history goes back all of five years, conveniently ignoring the origins of the practice in the 108th Congress, when Democrats were in the Senate minority, as I outlined here and here yesterday. (See here for a detailed discussion of the period before that.)
At the Washington Post, however, one might be surprised to find not only the editors but two reliably liberal columnists, Dana Milbank and Ruth Marcus, on the other side. But in an effort to be even-handed, the editors, among other things, call the Republican rationale for recently filibustering three Obama nominees to the DC Circuit Court of Appeals—that the court’s workload does not justify adding new judges—a “pretext.” Yet as I outlined yesterday, the facts say otherwise, clearly, and do so far more than when Democrats used that rationale, successfully, in 2006.
Which brings me to a couple of little noted points in the reportage that has followed yesterday’s bombshell. Not only have the facts been too often little aired in much of that, when not outright misreported, but the “both-sides-have-been-guilty” meme has been uncritically prominent. It’s true, of course, that Republicans too have filibustered some of Obama’s appellate court picks. But the sequence matters—or, as parents concerned not simply with peace but with justice often ask, “Who hit first?” Turn-around is fair play, as we say. And that’s what galls so many about the events of yesterday. As many have noted, even those who oppose judicial filibusters, Reid was fine with Democratic filibusters of George W. Bush’s appellate court nominees. He couldn’t endure the turn-around.
It was Mr. Dooley who first reminded us that “politics ain’t beanbag,” which old-line Democratic pols like Tip O’Neill took to heart and practiced like an art. That analogy with sports—let’s stipulate that beanbag is “sports” of a sort—is instructive. We don’t give a guy hitting only .200 four strikes, or require a clearly superior team to gain 15 yards for a first down. So too in politics: Whatever the rules may be, they have to be followed equally or one side is playing a suckers game. I raise this issue because we’re already hearing Republican stirrings that, given pressure from the base, they “will be unable to resist using the same power” Democrats have now used. Where is Mr. Dooley when he’s needed?
But a second point, too little noted, concerns the implications from there being numerous “judicial emergencies” in the other circuits—vacancies in seriously overworked circuits for which the president hasn’t even named anyone. Judicial emergencies have increased 90 percent since 2006, and the vacancies with nominees have declined from 60 percent to 47 percent. Yet rather than attend to filling those vacancies, Obama and Reid are focused on adding three more judges to the already seriously underworked and overstaffed DC Circuit. That speaks volumes, of course, about what their agenda is. As I wrote yesterday, the DC Circuit’s docket is mostly about challenges to administrative decisions. Judges in such cases have considerable discretion about whether or not to defer to the judgment of those agencies. If you want to rule by executive diktat, as Obama plainly does, you’ll want “your people” on that court, deferring to “your people” at EPA, HHS, OSHA, the FEC, the IRS, and so on down the line. Let the folks out in the country wait a little longer to get justice. Washington needs to get to the business of “fundamentally changing America.”