How to Block Appointments - Despite Filibuster Limits

Despite Filibuster Limits, a Door Remains Open to Block Judge Nominees

By CHARLIE SAVAGE

WASHINGTON — The decision by Senate Democrats to eliminate filibusters for most judicial nominations only marginally enhanced 

President Obama’s power to reshape the judiciary, according to court watchers from across the political spectrum, because Republican senators can still veto his nominees to most currently vacant appeals court seats.

The new Senate rule clears the way for eight appeals court nominees who have already had confirmation hearings to win approval with simple majority votes, including three on the powerful Court of Appeals for the District of Columbia Circuit, which reviews federal policies and regulations. But it left unchanged the Senate’s “blue slip” custom, which allows senators to block nominees to judgeships associated with their states.

“It is hard to overstate the change’s importance for the D.C. Circuit, which has a disproportionate impact on the world, but it won’t have overwhelming impact elsewhere,” Kathryn Ruemmler, the White House counsel, said in an interview. “The blue slip rule for judges has been more problematic than the filibuster, in part because it is a silent, unaccountable veto.”

Twelve more appeals court seats are either vacant or will be by the end of 2014. All but one are in states with at least one Republican senator. As a result, Mr. Obama still lacks unrestricted power to swiftly appoint a flurry of more clearly left-of-center judges than he has done to date, despite the fears of conservatives and the hopes of liberals, specialists said.

The use of the filibuster to require a 60-vote supermajority to confirm an appeals court nominee arose out of the bitter aftermath of the disputed 2000 presidential election, when Senate Democrats used the tactic to deny lifetime appointments for several of President George W. Bush’s nominees who were particularly outspoken conservatives.

After Mr. Obama was elected, Senate Republicans escalated the practice, routinely delaying the confirmation of executive branch and judicial nominees and blocking up-or-down votes on four District of Columbia Circuit nominees. Now, a simple majority of senators will once again be able to confirm nominees to the executive branch and lower courts; filibusters of Supreme Court nominees remain permitted.

Edward Whelan, the president of the conservative Ethics and Public Policy Center, said the change effectively reset the balance of power between presidents and opposition-party senators back to how things were before the Bush years — with other political constraints still in place.

“What is being ignored in the discussion of how much free rein the administration will have is that there are political costs to selecting wackos,” Mr. Whelan said. “So the question is, how much will this change really be worth? It may well not be as transformative as people claim.”

And Ms. Ruemmler said that Mr. Obama had been looking for “smart and thoughtful” judges who had the “potential to persuade” conservative colleagues, rather than outspoken liberals. She suggested that the strategic approach, with Justice Elena Kagan as a model, was unlikely to change much.

What remains unclear is whether the landmark rule change has established a new equilibrium, or whether more changes may follow. If there is additional fallout, specialists said, Mr. Obama’s power to swiftly appoint the judges of his choice — and the power of his successors of either party — may yet be expanded significantly.

In particular, the blue slip rule could come under additional scrutiny. Under the prerogative, both home-state senators must sign off on a blue slip allowing a confirmation hearing for a nominee. Facing that obstacle, presidents generally do not make nominations without such senators’ consent.

“The blue slip is still a very powerful tool,” Mr. Whelan said. “Indeed, we may get Republicans, realizing that they no longer have the minority power of the filibuster, becoming more aggressive in using the blue slip.”

Already, according to a recent study by Russell Wheeler of the Brookings Institution, vacancies without nominees are disproportionately likely to be in states like Texas that are represented by Republican senators. That suggests, he wrote, that they are “objecting to nominees floated by the administration, insisting on nominees unacceptable to the administration, or simply slow-walking the process.”

Any change to the blue slip rule would be up to the chairman of the Senate Judiciary Committee, Patrick J. Leahy, Democrat of Vermont. So far, however, he has enforced the rule broadly, even blocking a Kansas nominee to a federal appeals court because both Kansas senators changed their minds after clearing the nominee.

Sheldon Goldman, a political science professor at the University of Massachusetts, Amherst, said that if Republican senators used the blue slip rule to “gum up the works” and Mr. Leahy decided to allow confirmation hearings without their approval, Mr. Obama — and future presidents — would be freer to appoint more ideologically outspoken judges across the country.

After the vote to change the filibuster rule, Mr. Leahy reiterated his support for the blue slip rule. Still, he also said he could change his mind if it were abused — without defining “abuse.”

“I assume no one will abuse the blue slip process like some have abused the use of the filibuster to block judicial nominees on the floor of the Senate,” he said in a statement. “As long as the blue slip process is not being abused by home-state senators, then I will see no reason to change that tradition.”

The new Senate policy could also shape the career decisions of sitting judges. While the change did not affect the rules for Supreme 

Court nominations, it set a precedent that could be used to shut down any filibuster for such a nominee as well. Several observers suggested that the prospect might influence decisions by Justices Ruth Bader Ginsburg, 80, and Stephen G. Breyer, 75, about whether to retire in 2014. Still, neither has publicly indicated any desire to time an exit strategically.

The Senate change also opened a political window to fill judgeships over which Republicans do not wield blue slip power with the support of just 51 Democratic senators — a window that will close in 2015 if Republicans retake a Senate majority in the midterm elections. That prospect could prompt additional Democratic-appointed appeals court judges who are, or soon will be, eligible for senior status to move up their semi-retirement. It allows judges to keep hearing cases at a reduced workload, while enabling the president to appoint a successor.

There are 18 such judges in seats from states with two Democratic senators, and two more on the District of Columbia Circuit, according to data compiled by Mr. Wheeler.

“Some Democratic appointees may be more attracted to retiring in this window because they have more confidence that Obama will be able to appoint a young successor,” he said.