What goes around comes around: Democrats first changed the filibuster rule for some federal judges


By Robert Willmann

While the U.S. Supreme Court issued some decisions and opinions of note this term for discussion, once again the subject was "overtaken by events", as the State Department is fond of saying.  On Wednesday, 27 June 2018, Judge Anthony Kennedy went to the White House to tell president Trump and then announced by a letter that he would be retiring–


Judge Kennedy was appointed by president Ronald Reagan and took the oath of office on 18 February 1988.  His letter makes clear that his position as an associate judge will end on 31 July of this year, but that he will take "senior status" under Title 28, United States Code, section 371(b).  This means that he will retain the office but retire from regular active service [1].  Federal judges with senior status continue to participate in some cases, and Judge Kennedy will likely do so until his successor is confirmed and sworn in.

The unexpected news jumped to the forefront, and the voluble Chris Matthews on the MSNBC television network almost had a cow shortly after the announcement, he was so distraught that another judge would be appointed with the present makeup of the U.S. Senate and executive branch.  But that is the least of it.

Blowback.  What goes around comes around. 

Barack Obama, while president, got together with the Democratic majority leader of the Senate, Harry Reid (now retired), and the "filibuster rule" in the senate — technically, the "cloture rule" — was changed for confirmation of executive branch nominees and of federal judges such that it would apply only to Supreme Court judges and not for other federal judge nominees.  They did it by muscling through an interpretation of a senate rule, calling it a new "precedent", without actually changing the rules.  This allowed Obama to get nominations for federal district judges (the trial court) and circuit judges (courts of appeals) confirmed by a simple majority vote of 51 senators, or 50 senators plus the vice-president, or a simple majority of the members present, provided there is a quorum.  The concept of "cloture" has taken the place of the traditional filibuster.  A vote on cloture is a vote to end unlimited debate when a nomination or item is on the floor for consideration, and requires 60 votes to pass, so that an up-or-down vote can then be taken on the item or nomination being considered.  This paper from the Congressional Research Service (CRS) explains the Obama change of 2013–


Rather than leaving well enough alone, the Democrats shot themselves in the other foot in 2017 after Trump nominated Neil Gorsuch to the Supreme Court place held by Judge Antonin Scalia until he died in February 2016 [2].


 In January 2017, when Trump was sworn in as president, the Republicans had a bare majority in the senate, but it allowed them to select the majority leader, who is Mitch McConnell (Repub., Kentucky).  Trump quickly appointed Elaine Chao, McConnell's wife, to be Secretary of Transportation in order to stabilize relations with McConnell, who is of the "political establishment", and to grease the skids for his other nominations and proposals.  Although he does not have the overall skills of the late, great Senator Robert Byrd (Dem., W. Virginia), McConnell is a master at cobbling together enough votes to get an item passed in the senate.

When the Gorsuch nomination was at the senate, the Democrats, and their minority "leader" Charles Schumer (Dem., New York), decided to try to obstruct everything about that process.  Gorsuch received a positive vote of 11-9 from the senate judiciary committee, strictly along political party lines–


When legislation or a nomination gets to the full senate, it does not just easily come up for a final vote.  Procedures control the process, and if it gets to the floor for "consideration", that is not the end of it.  Before you get a final up-or-down vote, "cloture" must be invoked, which is through the filibuster or cloture rule to end unlimited debate and continuous consideration and to get to a final vote.   Senate rule 22, paragraph 2, applies [3].  If unanimous consent by the senators is not given to proceed to a final vote, a vote on cloture must happen.  This is where the 60-vote requirement can come into play, and it still exists for proposed laws and legislation. 

McConnell tried to get the Democrats to agree to not have a cloture vote on Gorsuch and instead proceed to a straight up-or-down vote.  He publicly said so on the NBC Meet the Press television program, remarking that even during the lurid and contentious nomination of Clarence Thomas to the Supreme Court in 1991, no one threatened a filibuster and demanded a cloture vote–


However, the Democrats raised the middle finger, refused to agree, and forced a vote on cloture, which of course failed, 55 in favor and 45 against.  This would have blocked a final vote on Gorsuch, except that McConnell then said in effect, "OK boys and girls, watch this":  he proceeded with some detailed procedural steps that resulted in a new "precedent" about the cloture rule which wiped out and canceled the 60-vote requirement to end a filibuster for Supreme Court nominees. A new cloture vote was taken, and it passed, 54-45.  A final vote on Gorsuch then occurred, and he was confirmed, 54-45, on 7 April 2017.  This is explained in another CRS report, and the moves McConnell made are described on pages 2-3 (pdf pages 4-5)–


Now that Judge Kennedy is retiring and Trump gets to make another nomination, the Democrats are back on the battlefield but threw away their last defensive weapon in November 2013 and April 2017.  What were the Democrats thinking, if they were thinking at all?  Perhaps they thought that the Republicans and McConnell would not dare make a General Patton move and strike ahead to knock down the 60-vote requirement for cloture on supreme court nominees in the face of probable media criticism and that Republicans may need votes from some Democrats on various matters in the future.  Or, maybe they thought that Kennedy was not going to retire.  In fact, this week his family "was willing for him to continue to serve" [4]. 

When a nomination is sent to the senate committee authorized to start the process of "advice and consent", the committee does not even have to give the nominee a hearing about confirmation, which means that a nomination could be dead in the water right there.  A good illustration of this was Democratic president Bill Clinton's appointment in 1997 of Republican William Weld to be the ambassador to Mexico.  The Republicans had a majority in the Senate and Jesse Helms of North Carolina was chairman of the Senate Foreign Relations Committee.  He did not want Weld to be the ambassador to Mexico, but offered a compromise through which Weld would have the post in India.  Clinton and Weld did not want that, so Helms refused to hold a hearing on the nomination.  A careful reading of the senate rules revealed that Helms could only be forced to call a "meeting", but not a "hearing".  This 38-minute video of the "meeting" is instructive on that issue and fun to watch.  On the committee nearly 21 years ago were Smiling Joe Biden and John Kerry–


On 21 November 2013, when Obama and Senator Harry Reid rammed through the new "precedent" that removed the 60-vote requirement for cloture on executive branch nominations and federal judges except for those for the Supreme Court, Reid and McConnell both gave speeches about it.  In this video, McConnell's usually bland demeanor did not entirely hide his anger over what was happening, and his statement starts at the 14 minute mark.  At 28 min., 58 sec. he says–

"If you want to play games, set yet another precedent that you'll no doubt come to regret, (I) say to my friends on the other side of the aisle, you'll regret this, and you may regret it a lot sooner than you think.  Let me be clear: the Democratic playbook of broken promises, double standards, and raw power, the same playbook that got us Obamacare, has to end …."


The Democrats, by their own actions — and especially by the actions of Senator Chuck Schumer — have put themselves in a position where they cannot even bring a knife to a gunfight.  Once the nominee is referred to the Senate Judiciary Committee, from that point forward, all Trump has to do is maintain simple majority votes throughout the process, and wheel and deal on a single, clearly-defined item, which is something he had a lot of experience doing before he became president.

My guess is that Judge Kennedy's resignation caught the Democrats and some others by surprise.

You are going to hear a lot of howling and complaining on the television and elsewhere in print about the issues discussed here.  But a senate committee does not even have to hold a hearing on a nominee, regardless of whether it is a presidential election year (Obama's last Supreme Court pick, Merrick Garland, was blocked that way in 2016); the Democrats themselves were the first ever to filibuster a federal judge's nomination (during the Bush jr administration); and they were the first to remove the senate filibuster and cloture rule by pushing through a new "precedent" about federal judges and executive branch nominees. 

With the two Congressional Research Office papers, the videos, and other material here, you can have a good, basic understanding of the process in the forthcoming Supreme Court nomination.  And you will be better prepared to analyze the wailing, gnashing of teeth, and posturing already underway regarding this significant development.

[1]   28 U.S. Code section 371–


[2]   Judge Antonin Scalia–


[3]   Rules of the Senate–



[4]  http://www.supremecourt.gov/publicinfo/press/pressreleases/pr_06-27-18


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