With just a few small tweaks to the rules, filibuster reform proponents believe, the U.S. Senate could eliminate the gridlock afflicting the federal judicial confirmation process: no more senators anonymously blocking nominations; no more threats to tie up the Senate for days just to confirm a single trial judge. But, given the Senate’s history of failed filibuster reform, the Democratic senators pushing the main reform package know they face a difficult challenge.

Although senators can use filibusters to stall any type of legislation, reform proponents are highlighting the way the process has turned federal judicial nominees into political hostages, kept the courts short-staffed and discouraged the best candidates from applying for judgeships.On the surface, the political momentum appears favorable to busting down the filibuster. Senate Majority Leader Harry Reid (D-Nev.) supports reform, and supporters claim to have enough votes to pass their modest, scaled-back proposal. But change won’t come easily to an institution whose members tend to be protective of their privileges.

The main package under consideration, backed by senators Tom Udall (D-N.M.), Jeff Merkley (D-Ore.) and Tom Harkin (D-Iowa), would help judicial and other White House appointees directly. Instead of being able to block a vote for a nominee through an anonymous “hold,” senators would have to take to the floor in a so-called “talking filibuster.” And the process for overcoming a filibuster — cloture — would be reduced from a few days to a few hours (except for U.S. Supreme Court nominees).”This allows you to set up a number of nominations and get up or down votes on them,” Udall told reporters on January 3, the first day of the new congressional session. “But the heart of it is trying to deal with the secret, stealth, silent filibuster.”A bipartisan group of eight senators led by Carl Levin (D-Mich.) and John McCain (R-Ariz.) is pitching a more modest counterproposal that wouldn’t require a talking filibuster.

Instead of tackling the issue on the first day of the new Congress, Reid decided to delay until the Senate returns on January 22. That gives him more time to negotiate with Republicans, maybe with an eye toward a temporary fix that would last for only one session.

Reid would only have enough votes to change the rules through a controversial tactic dubbed the “nuclear option.” In theory, the Constitution allows the Senate to amend its own rules on a simple majority vote (51), instead of the two-thirds vote normally required to change the Senate’s rules. The tactic has been rarely used and risks strong pushback from Republicans.”I think this turns on Reid,” said Steven Smith, a political science professor at Washington University in St. Louis who has studied Senate procedure. “He bought into the idea that Republicans can’t be trusted. On the other hand, he probably would like to avoid encouraging the Republicans from becoming more obstructionist.”


Two years ago, the last time the Senate considered the filibuster, Reid abandoned Democratic reformers in favor of a gentleman’s agreement with Republicans to eliminate secret holds and reduce the use of the filibuster. The move avoided the nuclear option, Smith noted, but Reid later regretted the deal, and said on the Senate floor later in 2011 that Republicans were not holding up their end of the bargain.The costs of the Senate gridlock are evident: Judicial nominees waited an average 139 days just to secure a confirmation vote from the full Senate during President Obama’s first term, compared with 54 days during George W. Bush’s administration and 30 days during Bill Clinton’s, according to the Brookings Institution. And the best-qualified attorneys for the bench, especially those at top law firms, have become increasingly wary of confirmation delays that can harm their business and personal finances, according to some senators.

Senator Ben Cardin (D-Md.), whose state saw two district judges confirmed this year, said the delays are damaging the country’s ability to recruit the very best candidates for the bench, even if they are noncontroversial. “But you look at the calendar here and say, ‘If I go through this, I am going to be on this calendar for at least six months, it looks like. What does that do to my law firm? Can I try cases? What do I do for the next six months?’ ” he said during a floor speech on January 2. “ ’It is not fair to me, it is not fair to my law firm, and it is not fair to my family.’ So you are not going to put yourself forward.”

Among scholars who track the nomination process, there really is no debate: The congressional stalemate is contributing to fewer federal judges from private practice. Candidates who are already state judges or federal magistrates are less affected by gridlock because they can keep their day job during a lengthy nomination process. During Clinton’s first term, almost half of judges came from private practice; during Obama’s first term, that rate dropped to one in three, the lowest ever, according to Russell Wheeler, who tracks judicial nominations for the Brookings Institution.

“It has to be lawyers in private practice just aren’t willing to have their practice go in limbo for eight, nine, 10 months once they get nominated,” Wheeler said. “You hear stories of lawyers who play tennis for eight months because they have nothing else to do.”

The threat of filibuster reform may have already meant more judicial confirmations, according to Wheeler and Sheldon Goldman, professor of political science at the University of Massachu­setts. The unprecedented rush of 13 district court confirmations during the lame duck session of Congress might have been aimed at taking the wind out of the sails of filibuster reform, Wheeler said.

Todd Ruger can be reached at truger@alm.com.