Guest commentary: New rule a blow to moderation

Last Thursday, the Senate voted to permit all federal judges except Supreme Court justices to be confirmed by a simple majority vote. Previously, these nominations could be filibustered, and it took 60 votes to shut off debate and vote on confirmation.

The 60-vote threshold was a powerful antidote to the appointment of federal judges whose legal and political worldviews lay at the extreme ends of the spectrum — right or left. As a practical matter, corralling 60 votes for a contested judicial nominee in the modern Senate generally has meant that at least some respectable slice of the minority party must join with the majority party to close debate and assure confirmation. This important feature of the Senate rules landscape deterred presidents from nominating prospective judges on the fringe and, when presidents nevertheless made nominations perceived to be outside the center, seriously impeded confirmation of such nominees.

The net result — for administrations of both Republican and Democratic presidents — has been a powerful moderating force tending to keep federal judges who were nominated and confirmed in the centrist mainstream.

The new regime will permit federal trial and appeal judges to be confirmed solely upon the favorable vote of the members of the majority party. Today, we happen to have a Democratic president and a Democratic majority in the Senate; but the same partisan pathway to confirmation will open up when, sooner or later, Republicans again control both the White House and the Senate. Inevitably, losing the 60-vote check will open the door to the nomination and confirmation of federal judges who come from, and carry with them to the bench, far more hard-core partisan experiences and philosophies than typically have made it through the process before now. To be sure, both parties will point to their own idea of non-centrists who have been confirmed and wear black robes today; but such federal judges are the exception and not the rule.

The move to simple majority confirmation is a very bad development for the future credibility of the federal judiciary and for popular acceptance of its decisions. As luck would have it, Congress has now recessed for two weeks, and one can only hope that the Senators will get an earful of unhappy feedback over the Thanksgiving break. This change is a real turkey.

I understand the frustration among Democratic senators who saw nominees whom they considered to be well qualified threatened with rejection if the rules weren’t changed. This is not a new phenomenon, however, nor have Democratic nominees been its only victims. I have eminently qualified friends from both political parties who have seen their nominations wither on the vine based on dubious opposition from the other party.

Seating top-notch judges is not a partisan matter. To paraphrase Thomas Jefferson, when it comes to securing a credible, impartial judiciary, we are all Democrats, we are all Republicans.

It may seem hard-nosed to put it this way, but the real question is whether the loss of a few good men and women to unjust partisanship is worth making it easy to install on the federal bench for life large numbers of nominees who predictably will be more partisan than those centrist judges who until now were most likely to make it through the old 60-vote system. As with so many issues in public policy, the choice here is not between the purely good and the purely bad, but between the least bad of two alternative courses of action. By opening the door to simple partisan confirmation of judges to lifetime appointments, I think the Senate has chosen the most bad — not the least bad — alternative.

Over the congressional break, or at least before too long, let us hope that cooler heads prevail and that the moderates of both parties will resume negotiations. We need a judicial confirmation process that provides a reasonable check on hard core nominees of the right and left while permitting the elected president and the Senate majority an appropriate upper hand in the process.

Jack M. Weiss is the chancellor of LSU’s Paul M. Hebert Law Center. The views expressed are his own and not necessarily those of the Law Center or of LSU.