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What's the True Impact of the Nuclear Option on Judicial Nominees?

By William Peacock, Esq. on November 27, 2013 11:55 AM

Earlier this month, the U.S. Senate invoked the so-called "nuclear option," killing the ability of senators to stall voting on presidential nominees via the filibuster. Some have called the move a "power grab" by Democrats, and a "court-packing plan." Others defend the move as a necessary reaction to unprecedented gridlock, and an appropriate response to Republicans' continued refusals to confirm nearly any of President Obama's nominees.

Necessary or not, the move unquestionably reduces the ability of the minority party to debate the merits of nominees. On certain courts, the move all but assures that the party in power can appoint whomever they want, no matter how extreme the nominee's views. However, the effects of the move will be obviated, in part, by the not-so-well-known "blue slips" process.

4th Circuit Judge Wilkinson: Ideologue Nominees Bad for the Judiciary

Judge Harvie Wilkinson, a Reagan appointee, penned an op-ed for The Washington Post earlier this week, explaining why the move could be devastating for the judiciary. Judge Wilkinson argues that the bi-partisan approval process ensures that extreme ideologues are kept off the bench in favor of moderates, which allow for civilized debate and discourse amongst the judges.

He fears that because the public is too concerned with other matters (national security, presidential politics), and because debate in the Senate has now been, in large part, ended, that judgeships, especially district court seats (which the public is even less likely to pay attention to) are even more likely to become patronage positions, doled out to hardcore party loyalists and ideologues.

Blue Slips Mitigate the Damage, Somewhat

But is debate really dead? As we noted when the Senate made its rule-change announcement, the blue slips process is still in play. It allows a state's senator to approve or reject a nominee for a judicial seat assigned to a certain state. At least in states where the minority party holds a senate seat, there is still the ability to block nominations.

For example, consider the Eleventh Circuit. We took a look at the circuit's unusually large number of vacancies, and how the blue slips process could affect potential nominees. Five of the six senators in Eleventh Circuit states are Republicans, which means nominees for nearly all of the thirteen vacancies can be blocked.

However, blue slips have obvious limitations. Take a look at the D.C. Circuit: with no Senators, let alone Republican senators, there is no one to "blue slip" any of President Obama's three nominees. All are expected to be confirmed in the near-term. One can expect the same result for any state in which the majority power holds the corresponding senate seats. And, of course, there's always the possibility that the blue slips rule is also nixed.

Not Good, But Not Apocalyptic

To be sure, quashing debate and dissent is rarely a good thing. Judge Wilkinson makes a great point: a lack of debate or bi-partisan consideration makes it way more likely that uncompromising ideologues will end up with lifetime appointments to the bench.

The blue slip process is a partial remedy, providing a veto for a state's senators to quash a nomination. However, the power only serves a purpose in states where the minority power holds the senate seats.

What do you think? Join the discussion at FindLaw for Legal Professionals.

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